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BY-  ~M 
WILLIAM  C.  ROBINSON,  LL.D. 

WH1TEFORD   PROFESSOR   OF    COMMON    LAW    IN    THE    CATHOLIC    UNIVER- 

8ITT    OF   AMERICA;    SOMETIME    PROFESSOR   OF   LAW    IN    TALE 

UNIVERSITY  J     AUTHOR     OF     "  ELEMENTART      LAW," 

"FORENSIC    ORATORY,"    "LAW    OF    PATENTS," 

ETC..   ETC. 


BOSTON 
LITTLE,  BROWN,  AND   COMPANY 

1900 


T 

R5&23eL 

\900 

Copyriqht,  1900, 
By  William  C.  RobinsojT 


JPn'ntrra 
S.  J.  Parkhill  <fc  Co.,  Boston,  U.  S.  A. 


TO 
ALL  THOSE  MEMBERS  OF  THE 

AMERICAN    BAR 

BETWEEN   WHOM    AND    THE   AUTHOR 

THE   RELATION    OF    PUPIL    AND    TEACHER 

HAS   AT   ANY   TIME    EXISTED 

THIS    TREATISE 


IS 


AFFECTIONATELY   DEDICATED 


PREFACE. 


Jurisprudence,  as  the  word  is  used  in  the  title  of  this 
book,  denotes  the  science  of  which  law,  as  such,  is  the 
subject-matter ;  the  science  which  deals,  not  with  the 
commands  and  prohibitions  whereof  the  law  consists,  but 
with  the  law  itself,  its  nature,  its  origin,  its  history,  its 
divisions,  its  forms,  its  interpretation,  and  the  methods 
of  its  application  to  practical  affairs.  Of  law  in  general, 
considered  as  an  essential  feature  of  political  society  and 
abstracted  from  all  definite  systems  of  law,  there  is  a  uni- 
versal science  known  as  General  Jurisprudence ;  and  of 
every  system  of  law,  differing  as  each  does  from  every 
other  in  some  of  its.  exterior  characteristics,  there  is  a 
special  science,  —  the  Particular  Jurisprudence  of  the 
State  in  which  that  law  prevails.  Thus  American  Juris- 
prudence is  a  special  science,  treating  of  the  laws  of  the 
United  States  and  of  the  States  of  which  the  American 
Union  is  composed. 

Manifestly  some  knowledge  of  this  science  is  important 
to  every  educated  citizen  who  aspires  to  the  intelligent 
discharge  of  his  political  duties;  a  more  intimate  acquaint- 
ance with  it  is  indispensable  to  the  lawyer  and  the  judge 
who  participate  in  the  interpretation  and 'administration  of 
the  law;  while  for  the  jurist  and  the  legislator  the  mastery 
over  it  must  be  still  broader  and  more  profound.  In  the 
present  work  it  has  been  the  purpose  of  the  author  to 
assist  the  various  grades  of  students  in  their  preparation 
for  these  different   positions  in  political  life.     In  writing 


Vlll  PREFACE. 

the  text  be  has  had  in  view  the  needs  of  those  who  are 
pursuing  courses  in  political  science  in  our  universities 
and  colleges,  and  has  endeavored  to  make  it  complete 
enough  to  afford  them  all  the  information  which  the  edu- 
cated citizen  requires  and  simple  enough  to  be  compre- 
hended by  those  who  have  no  technical  knowledge  of  the 
law.  In  prescribing  the  collateral  readings  from  the 
reports  and  treatises  he  has  attempted  to  open  to  the  pro- 
fessional student  a  wider  field  of  research,  and  to  guide  the 
advanced  explorer  of  the  history  and  philosophy  of  our  law 
to  those  rich  treasures  of  legal  thought  and  learning  which 
have  been  accumulating  in  the  decisions  of  our  courts  and 
in  the  text-books  of  our  law-writers  for  a  thousand  years. 

In  reference  to  these  readings  it  seems  scarcely  necessary 
to  remark  that  the  treatises  selected  are  but  a  fragment  of 
the  vast  literature  devoted  to  this  subject.  It  was  the  aim 
of  the  author  to  present  the  student  with  a  small  number 
of  representative  works,  of  high  authority  and  easily  acces- 
sible, through  which  he  might  be  conducted,  if  he  desired  it, 
into  investigations  even  more  extensive  than  the  scope  of 
this  elementary  manual  would  permit  it  to  prescribe.  .  But 
in  no  case  has  this  choice  of  treatises  been  determined  by 
the  harmony  of  their  opinions  upon  open  questions  with 
those  which  the  author  has  himself  expressed.  On  the 
contrary,  as  the  student  will  soon  discover,  there  are 
marked  differences  in  their  conclusions  concerning  the 
nature  and  authority  of  law,  the  origin  of  legal  rights, 
and  various  other  matters,  caused  by  the  different  premises 
adopted  by  the  writers  and  the  fundamental  principles 
from  which  their  development  of  the  philosophy  of  law 
proceeds.  Of  these  differences  no  particular  notice  is 
taken  in  the  text,  and  no  direct  attempt  is  made  to  expose 
and  contravene  the  errors  which,  in  the  author's  judgment, 
some  of  these  treatises  contain.  Destructive  criticism,  if 
ever  profitable,  is  out  of  place  in  a  work  designed,  in  part 


PKEFACE.  IX 

at  least,  to  introduce  beginners  to  a  subject,  and  hence  the 
author  has  contented  himself  with  stating  his  own  convic- 
tions and  the  reasoning  which  supports  them  ;  leaving  the 
student  to  encounter  and  consider  different  opinions  when 
his  knowledge  of  the  science  has  become  more  intimate 
and  his  judgment  more  mature. 

In  making  the  selection  of  readings  from  the  decided 
cases  the  author  has  been  confronted  with  much  graver 
difficulties.  To  the  immense  number  of  decisions  pub- 
lished in  the  Federal  and  State  reports  must  be  added 
those  of  the  English  courts  from  the  first  Year-fBook  to 
the  present  day,  if  one  would  fairly  estimate  the  volume  of 
case-law  which  more  or  less  directly  bears  upon  the  ques- 
tions pertaining  to  a  science  of  which  the  law  itself  is  the 
subject.  To  bring  the  readings  from  the  cases  within  the 
student's  practical  attainment  it  was  obviously  necessary  to 
make  the  number  comparatively  few,  and  to  select  these 
from  series  of  reports  most  likely  to  be  within  his  reach 
and  to  be  able  to  lead  him  by  their  notes  and  references 
into  contact  with  other  cases,  both  English  and  American, 
in  which  the  points  decided  had  also  been  discussed. 
After  long  deliberation  the  author  therefore  finally  deter- 
mined to  confine  himself  in  these  citations  to  the  reports 
of  the  Supreme  Court  of  the  United  States,  and  to  the 
series  of  State  cases  known  as  the  American  Decisions, 
American  Reports,  and  American  State  Reports.  That 
the  Supreme  Court  Reports  should  occupy  the  position 
here  accorded  to  them  no  one  will  doubt  who  calls  to 
mind  the  fact  that,  to  a  great  extent,  the  science  of  Ameri- 
can Jurisprudence  has  been  created  by  the  decisions  of  that 
august  tribunal.  The  reasons  for  adopting  the  series  of 
American  Decisions,  Reports,  and  State  Reports  were  that 
it  is  probably  now  accessible  to  a  greater  multitude  of 
students  than  the  whole  body  of  State  decisions  or  than 
any  other  series  covering  an  equal  field ;  that  it  is  a  fair 


X  PREFACE. 

representative  collection  of  State  cases,  chronologically  ar- 
ranged, from  the  earliest  American  reporters  to  the  present 
time ;  and  that  its  copious  notes,  cross-references,  and 
comparative  analyses  of  cases  decided  on  the  same  point 
in  different  States  render  it  particularly  helpful  to  the 
student  of  American  Law  as  an  entire  system  rather  than 
as  a  body  of  mere  local  rules.  Students  who  are  unable  to 
make  use  of  this  series,  or  prefer  to  read  the  cases  in  the 
original  State  reports,  will  find  a  Reference  Table  at  the 
commencement  of  this  volume,  indicating  the  page  and 
number  of  the  State  report  from  which  each  cited  case  is 
taken.  This  course,  however,  will  prove  less  profitable  to 
the  student  since  the  notes  contained  in  the  series  followed 
by  the  author  are  absent  from  the  State  reports,  and  as 
many  cases  have  been  cited  principally  on  account  of  these, 
the  reader  of  the  decision  in  the  State  reports  will  some- 
times be  compelled  to  satisfy  himself  with  a  judicial 
opinion  of  comparatively  slight  importance,  when  in  the 
other  series  he  would  find  it  made  the  text  for  a  general 
discussion  of  the  law  of  exceeding  interest  and  value. 

It  is  further  to  be  noted  that  the  citations  appended  to 
the  paragraphs  are,  in  every  instance,  readings  provided  for 
the  student,  not  mere  authorities  to  support  the  positions 
taken  in  the  text.  The  author  has  exercised  all  possible 
pains  not  to  recommend  an  entire  case  unless  the  entire 
case  is  worthy  of  the  careful  perusal  and  consideration  of 
the  reader,  and  not  to  repeat  a  case  unless  its  bearing  upon 
the  points  to  which  it  is  subsequently  cited  is  too  impor- 
tant to  justify  him  in  excluding  it.  Moreover,  the  cases 
should  be  read  in  the  order  in  which  they  are  arranged  ; 
for  the  arrangement  of  the  cases,  like  their  selection,  has 
been  made  with  a  regard  to  the  requirements  of  the  student 
and  cannot  be  departed  from  without  some  loss  to  him. 
It  is  not,  however  intended  that  students  of  all  grades 
should  read  and  master  all  the  different  citations.     This 


PREFACE.  XI 

should  be  the  task  reserved  for  the  advanced  scholar  in 
our  graduate  schools  of  law.  For  the  college  student  in 
political  science  the  text  alone,  or  with  a  few  of  the  more 
simple  readings  from  the  treatises,  will  be  sufficient ;  for 
the  professional  law-student  the  text,  the  greater  portion 
of  the  treatises,  and  a  selection  made  by  his  instructor 
from  the  cases,  may  be  advantageously  prescribed. 

In  issuing  this  volume  from  the  press  the  author  cannot 
refrain  from  expressing  the  pleasure  it  has  given  him, 
while  preparing  it,  to  travel  again  the  paths  of  legal 
learning  along  which  for  so  many  years,  in  conjunction 
with  the  late  Professor  Edward  J.  Phelps,  he  conducted 
the  academic  seniors  of  Yale  University.  Few  teachers 
have  ever  equalled  Professor  Phelps  in  his  high  apprecia- 
tion and  in  his  ability  as  an  expounder  of  American  Juris- 
prudence. It  is  the  ceaseless  regret  of  his  colleagues  and 
his  pupils  that  he  has  not  left  behind  him  a  treatise  on 
this  subject,  which,  though  it  could  not  augment,  might 
serve  to  perpetuate  his  fame. 

WILLIAM   C.   ROBINSON. 

Washington,  D.  C,  September,  1900. 


TABLE  OF  CONTENTS. 


Reference  Table xxxi 

List  of  Treatises  cited lyl1 

List  of  Reports  cited lviii 


CHAPTER   I. 

OF  THE  NATURE  AND  AUTHORITY  OF  LAW. 

§  1.  Of  the  Essential  Nature  of  Law. 

2.  Of  the  Eternal  Law. 

3.  Of  Natural  Law. 

4.  Of  Positive  Law. 

5.  Of  Divine  Law. 

6.  Of  Human  Law. 

7.  Of  Human  Lawgivers:  the  State. 

8.  Of  the  Validity  of  Laws  Made  by  the  State. 

9.  Of  the  Uniformity  of  Laws. 

10.  Of  the  Civil  Law  and  the  Common  Law. 

11.  Of  International  Law. 

12.  Of  Maritime  Law. 

13.  Of  Ecclesiastical  Law. 

14.  Of  the  Different  Significations  of  the  phrase  "  Common  Law.' 
1").  Of  the  Common  Law  in  the  United  States. 

16.  Of  the  Subjects-Matter  of  Law  :  Persons  and  Things. 

CHAPTER   II. 

OF   NATURAL   PERSONS. 
SECTION   I. 

OF   THE   EXISTENCE,    IDENTITY,    AND    NAMES    OF   NATURAL 
PERSONS. 

§  17.  Of  the  Legal  Existence  of  Natural  Persons. 
18.   Of  the  Legal  Death  of  Natural  Persons. 


XIV  TABLE   OF   CONTENTS. 

§  19.  Of  the  Legal  Identity  and  Names  of  Natural  Persons. 

20.  Of  Identity  of  Names:  Idem  Sonans- 

21.  Of  Christian  Names,  Surnames,  and  Descriptive  Names. 

22.  Of  the  Voluntary  Adoption  or  Change  of  Personal  Names. 


SECTION   II. 

OF    STATUS. 

Article  I. 

Of  Status  in  General. 

§  23.  Of  the  Nature  of  Status. 
24.   Of  Normal  and  Abnormal  Status. 

Article  II. 
Of  the  Status  of  Infants. 

§  25.  Of  Infancy  and  its  Inherent  Disabilities. 

26.  Of  the  Control  of  an  Infant  over  las  Person  and  Property. 

27.  Of  the  Power  of  an  Infant  to  make  a  Contract. 

28.  Of  the  Power  of  an  Infant  to  Make  a  Contract,  continued. 

29.  Of  the  Liability  of  an  Infant  for  his  Torts. 

30.  Of  the  responsibility  of  an  Infant  for  Crime. 

31.  Of  the  Subjection  of  Infauts  to  the  Decisions  of  the  Courts. 

Article  III. 
Of  the  Status  of  Insane  Persons. 

§  32.  Of  Insanity  in  General. 

33.  Of  the  Varieties  and  Degrees  of  Insanity. 

34.  Of  the  Presumption  of  Sanity  :  Burden  of  Proof :  Evidence  of 

Insanity. 

35.  Of  the  Power  of  an  Insane  Person  to  make  a  Contract. 

36.  Of  the  Power  of  an  Insane  Person  to  make  a  Valid  Will. 

37.  Of  the  Liability  of  an  Insane  Person  for  his  Torts. 

38.  Of  the  Responsibility  of  an  Insane  Person  for  Crime. 

39.  Of  the  Standing  of  an  Insane  Person  in  the  Courts. 

40.  Of  the  Guardianship  of  Insane  Persons. 


TABLE  OF   CONTENTS.  XV 

Article  IV. 
Of  the  Status  of  Married  Women. 

§  41.  Of  the  Legal  Character  and  Validity  of  Marriage. 

42.  Of  the  Status  of  Married  Women  under  our  Ancient  Laws. 

43.  Of  the  Status  of  Married  Women  under  our  Present  Laws. 

Article  V. 

Of  the  Status  of  Persons  under  Coercion  or  Duress. 

§  44.  Of  the  Nature  of  Coercion  and  Duress. 
45.  Of  the  Liability  of  Persons  under  Duress  on  their  Contracts  or 
for  their  Crimes. 

Article  VI. 
Of  the  Status  of  Public  Officers, 

§  46.  Of  the  Nature  of  Public  Office. 

47.  Of  the  Incidents  of  Public  Office. 

48.  Of  Public  Officers. 

49.  Of  Officers  De  Jure  and  Officers  De  Facto. 

50.  Of  Ministerial  Officers  and  Judicial  Officers. 

51.  Of  the  Responsibility  of  Public  Officers   for  their   Acts   and 

Defaults. 

52.  Of  the  Remedies  and  Penalties  for  Breaches  of  Official  Duty. 

53.  Of  the  Exemption  of  Public  Officers  from  the   Liabilities  of 

Normal  Status. 

Article  VII. 

Of  the  Status  of  Aliens  and  Other  Persons  who  are  not 
Citizens. 

§  54.  Of  Citizenship. 

55.  Of  the  Right  to  Citizenship. 

56.  Of  Citizenship  of  the  United  States  by  Birth  and  by  Adoption. 

57.  Of  Citizenship  of  the  Individual  States  of  the  American  Union. 

58.  Of  the  Political  Rights  of  Citizens. 

59.  Of  the  Personal  Risrhts  of  Citizens. 


Xvi  TABLE   OF   CONTENTS. 

§  60.  Of  the  Duties  of  Citizens. 

61.  Of  the  Abnormal  Status  of  Aliens. 

62.  Of  Recent  Ameliorations  in  the  Abnormal  Status  of  Aliens. 

63.  Of  the  Abnormal  Status  of  Indians. 

64.  Of  the  Abnormal  Status  of  Slaves. 

65.  Of  the  Dependence  of  Status  upon  Law. 

SECTION  III. 

OF    DOMICILE. 

§  66.  Of  the  Nature  of  Domicile. 

67.  Of  the  Locality  of  Domicile. 

68.  Of  the  Domicile  of  Origin. 

69.  Of  Change  of  Domicile. 

70.  Of  the  "  Law  of  Domicile." 


CHAPTER   III. 

OF  ARTIFICIAL  PERSONS   OR   CORPORATIONS. 
SECTION   I. 

OF   THE   NATURE    AND   ATTRIBUTES    OF   CORPORATIONS. 

§  71.  Of  the  Nature  and  Purpose  of  Corporations. 

72.  Of  the  Creation  of  Corporations. 

73.  Of  the  Charter  of  a  Corporation. 

74.  Of  the  Franchises  and  Powers  of  a  Corporation. 

75.  Of  the  Officers  and  Agents  of  Corporations. 

76.  Of  Acts  Ultra  Vires. 

77.  Of  the  Name  and  Identity  of  a  Corporation. 

78.  Of  the  Status  of  a  Corporation. 

79.  Of  the  Domicile  of  a  Corporation. 

80.  Of  the  Control  of  the  State  over  its  Corporations. 

81.  Of  the  Combination  and  Consolidation  of  Corporations. 

82.  Of  the  Dissolution  of  Corporations. 

83.  Of  the  Distinction  between  the  Personalities  of  a  Corporation 

and  its  Members. 

84.  Of  Corporations  De  Jure. 

85.  Of  Corporations  De  Facto. 

86.  Of  Quasi  Corporations. 

•s7.   Of  Unincorporated  Associations. 


TABLE   OF   CONTENTS.  XVU 

§  88.  Of  the  Classes  of  Corporations:  Corporations  Sole:  Corpora- 
tions Aggregate. 
89.  Of  the  Classes  of  Corporations :  Public,  Private,  and   Quasi 
Public  Corporations. 


SECTION   II. 

OF    PRIVATE   CORPORATIONS. 

§  90.   Of  the  Attributes  of  Private  Corporations. 

91.  Of  the  Organization  of  Private  Corporations. 

92.  Of  the  Powers  of  Private  Corporations. 

93.  Of  Eleemosynary  Corporations. 

94.  Of  Civil  Corporations. 

95.  Of  Stock  Corporations. 

96.  Of  Shares  of  Stock. 

97.  Of  the  Liabilities  of  Stockholders. 

98.  Of  the  Ownership  and  Transfer  of  Stock. 

99.  Of  the  Rights  and  Liabilities  of  Stockholders  in  Reference  to 

Outside  Parties. 


SECTION   III. 

OF    QUASI    PUBLIC    CORPORATIONS. 

100.  Of  the  Peculiar  Franchises  of  Quasi  Public  Corporations. 

101.  Of  the  Right  to  Occupy  Public  Property. 

102.  Of  the  Right  of  Eminent  Domain. 

103.  Of  the  Right  to  a  Monopoly. 

104.  Of  the  Right  to  Take  Tolls. 

105.  Of  the  Control  of  the  State  over  Quasi  Public  Corporations. 

SECTION    IV. 

OF    PUBLIC    (  ORPORATIOXS. 

106.  Of  the  Nature  and  Powers  of  Public  Corporations. 

107.  Of  the  Legislative  Powers  of  Public  Corporations. 

108.  Of  the  Administrative  Powers  of  Public  Corporations. 

109.  Of   the    Liability   of    Public   Corporations   in    Reference    to 

Streets,  Sewers,  Bridges,  etc. 

110.  Of  the  Liability  of  Public  Corporations  for  the  Conduct  of 

their  Officers  and  Agents. 

111.  Of  the  Control  of  the  State  over  its  Public  Corporations. 

112.  Of  the  State  as  a  Corporation. 


Xviii  TABLE   OF   CONTENTS. 

CHAPTER  IV. 

OF   THINGS. 

§  113.  Of  the  Nature  of  Things. 

114.  Of  Things  Corporeal  and  Incorporeal. 

115.  Of  Incorporeal  Things  which  Exist  only  in  Contemplation  of 

Law. 

116.  Of  Things  Movable  and  Immovable. 

117.  Of  Things  Real  and  Personal. 

118.  Of  the  Authority  of  the  State  over  Things. 

CHAPTER   V. 

OF  RIGHTS,   DUTIES,    WRONGS,   AND   REMEDIES. 

» 

SECTION    I. 

OF    RIGHTS. 

§  119.   Of  the  Purpose  of  Law. 

120.  Of  the  Origin  of  Rights. 

121.  Of  the  Legal  Definition  and  Assertion  of  Essential  Rights. 

122.  Of  the  Legal  Definition  and  Assertion  of  Incidental  Rights. 

123.  Of  Rights  Public  and  Private. 

124.  Of  Rights  Normal  and  Abnormal. 

125.  Of  Rights  in  Rem  and  in  Personam. 

126.  Of  Rights  Antecedent  and  Remedial. 

127.  Of  Normal  Antecedent  Rights  in  Rem. 

128.  Of  Normal  Antecedent  Rights  in  Personam. 

129.  Of  Normal  Remedial  Rights  in  Rem. 

130.  Of  Normal  Remedial  Rights  in  Personam. 

131.  Of  the  Extinguishment  and  Transfer  of  Legal  Rights. 

SECTION   II. 

OF    DUTIES. 

§  132.  Of  the  Relation  between  Rights  and  Duties. 

133.  Of  Legal  Duties. 

134.  Of  the  Classes  of  Legal  Duties. 


TABLE    OF   CONTENTS.  xix 

§   135.  Of  the  Relation  of  Duty  to  Status. 

136.  Of  Acts  and  Forbearances. 

137.  ( »f  the  Distinction  between  Positive  and  Negative  Duties. 

138.  Of  the  Extinguishment  of  Duties. 


SECTION    III. 

OF    WRONGS. 

139.  Of  the  Nature  and  Scope  of  Legal  Wrongs. 

140.  Of  Malfeasances,  Misfeasances,  and  Nonfeasances. 

141.  Of  Public  Wrongs. 

142.  Of  the  Ingredients  of  a  Private  Wrong. 

143.  Of  the  Distinction  between  Torts  and  Breaches  of  Contract. 

144.  Of  Breaches  of  Contract. 

145.  Of  Torts. 

146.  Of  the  Relation  of  Wrongs  to  Status. 

147.  Of  the  Extinguishment  of  Wrongs. 


SECTION   IV. 

OF    REMEDIES. 

§  148.  Of  the  Relation  of  Remedies  to  Wrongs. 

149.  Of  the  Primary  Purpose  of  Remedies. 

150.  Of  Remedies  which  Place  the  Parties  in  Statu  Quo. 

151.  Of  Compensatory  Remedies  for  Public  Wrongs. 

152.  Of  Compensatory  Remedies  for  Private  Wrongs. 

153.  Of  Preventive  Remedies  for  Public  Wrongs. 

154.  Of  Preventive  Remedies  for  Private  Wrongs. 

155.  Of   Existing   Defects    in   the    Application    of    Remedies    to 

Wrongs. 

SECTION    V. 

OF    THE    LOGICAL    AND    CHRONOLOGICAL    RELATIONS    OF  RIGHTS, 
DUTIES,    WROMiS,    AND    REMEDIES. 

§  156.  Of   the  Logical  Relations   of    Rights,    Duties,   Wrongs,   and 
Remedies. 

157.  Of  the  Chronological  Relations  of  Rights.  Duties,  Wrongs, 

and  Remedies. 

158.  Of  Legal  Rights  not  yet  Defined. 


XX  TABLE   OF   CONTENTS. 

§  159.   Of  the  Definition  of  Rights  by  the  Prohibition  of  Wrongs. 

160.  Of  the  Study  of  Rights  from  the  Standpoint  of  Wrongs. 

161.  Of  the  Relation  of  Preventive  Remedies  to  the  Definition  of 

Rights. 


CHAPTER   VI. 

OF   THE   DIVISIONS   OF   THE   LAW. 
§  162.  Of  the  Classification  of  the  Rules  of  Law. 

SECTION   I. 

OF    SUBSTANTIVE    LAW   AND    ADJECTIVE    LAW. 

§  163.  Of  the  Distinction  between  Substantive  Law  and  Adjective 
Law. 

164.  Of  the  Rules  of  Substantive  Law. 

165.  Of  the  Rules  of  Adjective  Law. 

SECTION  II. 

OF    NATIONAL    LAW   AND    INTERNATIONAL    LAW. 

§  166.  Of  the  Source  of  National  Law. 

167.  Of  the  Authority  of  National  Law  over  the  State. 

168.  Of  the  Authority  of  National  Law  over  the  Citizen. 

169.  Of  the  Authority  of  Two  or  more  National  Laws  in  the  Same 

State. 

170.  Of  the  Territorial  Jurisdiction  of  National  Law. 

171.  Of  International  Law. 

172.  Of  the  Origin  and  Development  of  International  Law. 

173.  Of  the  Territorial  Jurisdiction  of  International  Law. 

174.  Of  the  Topical  Jurisdiction  of  International  Law. 

SECTION  III. 

OF    PRIVATE    LAW    AND    PUBLIC    LAW. 

§  175.  Of  the  Distinction  between  Private  Law  and  Public  Law. 

176.  Of  the  Divisions  of  Private  Law. 

177.  Of  the  Relation  of  Private  Law  to  National  Law  and  Inter- 

national Law. 

178.  Of  the  Divisions  of  Public  Law. 


TABLE   OF   CONTENTS.  XXI 

SECTION   IV. 

OF   FEDERAL   LAW    AND    STATE    LAW. 

§  179.  Of  the  Distinction  between  Federal  Law  and  State  Law. 

180.  Of  the  Territorial  Jurisdiction  of  Federal  Law  and  State  Law. 

181.  Of  the  Topical  Jurisdiction  of  Federal  Law  and  State  Law. 

182.  Of  the  Concurrent  Topical  Jurisdiction  of  Federal  Law  and 

State  Law. 

183.  Of  the  Judicial  Application  of  Federal  Law  and  State  Law. 

SECTION   V. 

OF   ENGLISH    LAW    AND    AMERICAN    LAW. 

§  184.  Of  the  English  Portion  of  our  Law. 

185.  Of  the  American  Portion  of  our  Law. 

186.  Of  the  Extent  to  which  English  Law  now  enters   into  our 

Law. 

187.  Of  the  Dependence  of  the  American  Portion  of  our  Law  upon 

the  English  Portion. 

188.  Of  the  Interpretation  of  the  English  Portion  of  our  Law  by  the 

English  Decisions. 

189.  Of  the  American  States  in  which  the  English  Law  has  been 

Adopted  as  a  Portion  of  their  Law. 

190.  Of  the  Presumption  that  the  English   Portion  of  our  Law  is 

Identical  in  all  our  American  States. 


CHAPTER   VII. 

OF  THE  JURISDICTION   OF  LAWS. 

§  191.  Of  the  Recognition  and  Enforcement  by  one  State  of  the  Laws 
of  other  States. 

192.  Of  the  Present  Enforcement  of  Laws  already  Repealed. 

193.  Of  the  Jurisdiction  of  Laws  :  "  Conflict  of  Laws:  "  "  Private 

International  Law." 

SECTION  I. 

OF    THE    JURISDICTION    OF    THE    LAWS    AS    DEPENDENT    UPON 

PLACE. 

§  194.  Of  the  Lex  Fori. 

195.   Of  the  Laws  which  may  Supersede  the  Lex  Fori. 


XXII  TABLE    OF    CONTENTS. 

§  196.  Of  the  Lex  Ligeantice. 

197.  Of  the  Lex  Domicilii. 

198.  Of  the  Lex  Rei  Sitae. 

199.  Of  the  Lex  Loci  Actus. 

200.  Of  the  Lex  Loci  Contractus. 

201.  Of  the  Lex  Solutionis. 

202.  Of  the  Lex  Loci  Pacti. 

203.  Of  the  Extent  of  Comity  and  its  Subordination  to  Law. 

SECTION   II. 

OF   THE   JURISDICTION    OF    THE    LAWS    AS    DEPENDENT    ON    TIME. 

§  20-1.  Of  the  Stability  of  Rights  under  Necessary  Changes  in  the 
Laws. 

205.  Of  the  Validity  of  Transactions  Completed  under  Laws  since 

Repealed. 

206.  Of  the  Impregnability  of  Vested  Rights  of  Property. 
207-  Of  the  Inviolability  of  Contract  Obligations. 

208.  Of  Ex  Post  Facto  Laws. 

209.  Of  Retrospective  Laws. 

210.  Of  the   Standard  of  the  Jurisdiction  of  Laws  as  Dependent 

upon  Time. 

SECTION   III. 

OF    THE    PROOF    OF    LAWS. 

§  211.  Of  the  Mode  of  Proving  Domestic  and  Foreign  Laws. 

212.  Of  the  Proof  of  international,  Federal,  and  English  Law. 

213.  Of  the  Proof  of  Special  Legislative  Enactments. 


CHAPTER   VIII. 

OF   THE   FORMS   OF   LAW. 

§  214.  Of  the  Causes  of  the  Variety  in  the  Forms  of  Law. 
215.  Of  the  Unwritten  Law  and  the  Written  Law. 

SECTION   I. 

OF    THE    UNWRITTEN    LAW. 

£  216.  Of  the  Origin  of  the  Unwritten  Law.    • 
217.   Ol  the  Nature  and  Obligation  of  Customs. 


TABLE   OF    CONTENTS.  win 

§  218.  Of  the  Mode  in  which  the  Obligation  of  Customs  is  Enforced. 

219.  Of  the  Transmutation  of  Customs  into  Retrospective  Laws. 

220.  Of  the  Transmutation  of  Customs  into  Prospective  Laws. 

221.  Of  the  Customs  Entitled  to  .Judicial  Sanction. 

222.  Of  the  Antiquity  of  Customary  Law. 

"    223.   Of  the  Rise  and  Sanction  of  Xew  Customs. 

224.  Of  the  History  of  the  Unwritten  Law. 

225.  Of  the  Unwritten  Law  of  the  States  of  the  American  Union. 
2i'f5.   Of  the  Unwritten  Law  of  the  United  States. 

1'27.  Of  the  Expression  of  the  Unwritten   Law   in  Maxims,  Defi- 
nitions, and  Judicial  Decisions. 

228.  Of  the  Number  and  Nature  of  the  Maxims. 

229.  Of  the  Legal  Scope  of  the  Maxims. 

230.  Of  the  Definitions  of  the  Unwritten  Law. 

231.  Of  Judicial  Decisions. 

232.  Of  the  Treatises  and  Reports. 

233.  Of  the  Principal  Treatises  before  the  Revolution. 

234.  Of  the  Principal  Reports  before  the  Revolution. 

235.  Of  Treatises  and  Reports  in  England  and  the  United  States 

since  the  Revolution. 


SECTION   II. 

OF    THE    WRITTEN    LAW. 

§  230.  Of  the  Nature  of  the  Written  Law. 

237.  Of  the  Origin  of  the  Written  Law. 

238.  Of  the   Subordination  of  the  Written  Law  to  the  Unwritten 

Law. 

239.  Of  the  Divisions  of  the  Written  Law. 

Article  I. 
Of  Constitutions. 

§  240.  Of  the  Nature  of  Constitutions. 

241.  Of  the  Preparation  and  Adoption  of  a  Written  Constitution. 

242.  Of  the  Proper  Contents  of  Written  Constitutions. 

243.  Of  tin;  Date  at  which  a  Written  Constitution  Takes  Effect. 

244.  Of  the  Prospective  Operation  of  Written  ('(institutions. 

245.  Of  the  Amendment  of  Written  Constitutions. 

2  10.  Of  the  History  of  the  English  and  American  Constitutions. 
JIT.  Of  the  Nature  of  the  Written  Constitutions  of  the  states  of 

the  American  Union. 
248.   Of  the  Unwritten  Constitutions  of  the  States  of  the  American 
Union 


XXIV  TABLE   OF   CONTENTS. 

§  249.  Of  the  Xature  of  the  Federal  Constitution. 

250.  Of  the  Supremacy  of  the  Federal  Constitution  in  its  own  Field 

of  Jurisdiction. 

251.  Of  the  Contents  of  the  Fedei'al  and  State  Constitutions. 

252.  Of  the  Interpretation  of  the  Federal  and  State  Constitutions  by 

the  Unwritten  Law. 

253.  Of  the  Constitutionality  of  Treaties  and  Statutes. 

Article  II. 
Of  Treaties. 

§  254.  Of  the  Nature  of  Treaties. 

255.  Of  the  Preparation  and  Adoption  of  Treaties. 

256.  Of  the  Contents  of  Treaties. 

257.  Of  the  Effect  of  Treaties. 

258.  Of  the  Supremacy  of  Treaties. 

259.  Of  Treaties  as  Portions  of  the  Written  Law. 

260.  Of  the  Amendment  and  Abrogation  of  Treaties. 

Article  III. 

Of  Codes. 

§  261.  Of  the  Xature  of  Codes. 

262.  Of  the  Legal  Importance  of  Codes. 

Article   IV. 

Of  Statutes. 

§  263.  Of  the  Nature  of  Statutes. 

264.  Of  Legislative  Authority  and  the   Public  Bodies  in  which  it 

Resides. 

265.  Of  the  Validity  of  Legislative  Acts. 

266.  Of  the  Contents  and  Different  Parts  of  Statutes. 

267.  Of  the  Date  when  Statutes  Take  Effect. 

268.  Of  the   Division  of  Statutes  into  Declaratory  and  Remedial, 

Affirmative  and  Negative. 

269.  Of  the  Division  of  Statutes  into  Public  and  Private. 

270.  Of  the  Division  of  Statutes  into  General  and  Local. 

271.  Of  the  Division  of  Statutes  into  Perpetual  and  Temporary. 

272.  Of  the  Division  of  Statutes  into  Mandatory  and  Directory. 

273.  Of  the  Division  of  Statutes  into  Prospective  and  Retrospective. 

274.  Of  the  Validity  of  Statutes  in  General. 


TABLE   OF   CONTENTS.  XXV 

275.  Of  the  Validity  of  Statutes  as  Affected  by  the  Relations  of  the 

Legislative  Body  to  the  State. 

276.  Of   the  Validity    of   Statutes   as    Affected   by   the   Inherent 

Limitations  of  Legislative  Bodies. 

277.  Of  the  Validity  of  Statutes  as  Affected  by  the  State  and  Fed- 

eral Constitutions. 

278.  Of  the  Jurisdiction  of  Courts  over  Questions  concerning  the 

Constitutionality  and  Validity  of  Statutes. 

279.  Of  the  Suspension  and  Expiration  of  Statutes. 

280.  Of  the  Repeal  of  Statutes. 

281.  Of  the  Effect  of  the  Repeal  of  a  Statute. 

282.  Of  the  Validity  of  the  Legislative  Acts  of  Subordinate  Legis- 

lative Bodies. 


CHAPTER   IX. 

OF   THE   INTERPRETATION   OF   LAW. 

§  283.  Of  the  Necessity  for  an  Authoritative  Interpretation  of  the 
Law. 

SECTION    I. 

OF    THE    INTERPRETATION    OF    THE    UNWRITTEN    LAW. 

§  284.  Of  the  Variety  of  the  Standards  Employed  in  the  Interpreta- 
tion of  the  Unwritten  Law. 

285.  Of  Judicial  Decisions  as  Interpreters  of  the  Unwritten  Law. 

286.  Of  the  Comparative  Value  of  Different  Judicial  Decisions  as 

Interpreters  of  the  Unwritten  Law. 

287.  Of  the  Value  of  Judicial  Decisions  upon  Analogous  Cases  as 

Interpreters  of  the  Unwritten  Law. 

288.  Of  Judicial   Decisions  as   Interpreters    of   the    Authoritative 

Verbal  Expressions  of  the  Unwritten  Law. 

289.  Of   Self-Evident  Principles  and  Popular   Customs   as   Inter- 

preters of  the  Unwritten  Law. 

290.  Of  the  Writings  of  Jurists  as  Interpreters  of  the  Unwritten 

Law. 

291.  Of  the  Reciprocal  Interpretative  Value  of  Cognate  Branches  of 

Law. 

292.  Of  Finality  in  the  Interpretation  of  the  Unwritten  Law. 


XXVI  TABLE   OF   CONTENTS. 

SECTION   II. 

OF  THE  INTERPRETATION  OF  THE  WRITTEN  LAW. 

§  293.   Of  the  Function  of  Interpretation  in  Reference  to  the  Written 
Law. 
294.   Of  the  Interpretation  of  Ordinary  Words. 
29-3.   Of  the  Interpretation  of  Technical  Words. 

296.  Of  the  Interpretation  of  Ambiguous  Words  by  the  Context. 

297.  Of  the    Interpretation    of  Ambiguous    Words   by  the    Title, 

Preamble,  Provisos,  or  Punctuation. 

298.  Of  the  Interpretation   of   Ambiguous   Words  by  Statutes    in 

Pari  Materia. 

299.  Of  the  Interpretation  of  Ambiguous  Words  by  Judicial  De- 

cisions. Popular  Custom,  or  General  Opinion. 

300.  Of  the  Interpretation  of  Ambiguous  Words  by  the  Apparent 

Intent  of  the  Legislative  Body  in  Employing  Them. 

301.  Of  the  Rule  that  Certain  Statutes  must  be  Strictly  Interpreted. 

302.  Of  the  Rule  that   Certain  Statutes  must  be  Liberally  Inter- 

preted. 

303.  Of  the    Applicability    of  the  Foregoing  Rules  to  all  Verbal 

Forms  of  Law. 

CHAPTER   X. 

OF  THE   APPLICATION   OF  LAW. 
§  304.  Of  the  Practical  Administration  of  Law. 

SECTION"  I. 

OF    COURTS    IN    GENERAL. 

§  305.  Of  the  Nature  of  Courts. 

306.  Of  the  General  Jurisdiction  of  Courts. 

307.  Of  the  Special  Jurisdiction  of  Courts. 
30S.  Of  the  Indirect  Jurisdiction  of  Courts. 

309.  Of  the  Inherent  Powers  of  Courts. 

310.  Of  the  Terms  or  Sessions  of  Courts. 

311.  Of  the  Proceedings  and  Judgments  of  Courts. 

312.  Of  Courts  of  Record  and  Courts  not  of  Record. 

313.  Of  Courts  of  Superior,  Inferior,  General,  or  Limited  Juris- 

diction. 


TABLE    OF    CONTENTS.  XXV11 

§  314.   Of  Appellate,  Civil.  Criminal,  or  Provisional  Courts. 

315.  Of  Legal  Controversies. 

316.  Of  the  Various  Systems  of  Courts. 

SECTION    II. 

OF    THE   COURTS    <>F    COMMON    LAW. 

§  317.   Of  the  Origin  of  the  Courts  of  Common  Law. 

318.  Of  the  Topical  Jurisdiction  of  the  Courts  of  Common  Law. 

319.  Of  the  Number  of  the  Parties  Litigant  in  the  Courts  of  Com- 

mon Law. 

320.  Of  the  Redress  Obtainable  in  Courts  of  Common  Law. 

321.  Of  the    Limitations  upon  the  Jurisdiction   of  the  Courts  of 

Common  Law. 

SECTION   III. 

OF    THE    COURTS    OF    EQUITY. 

§  322.  Of  the  Origin  of  the  Courts  of  Equity. 

323.  Of  the  Development  of  Courts  of  I^quity. 

324.  Of  the  Conflict  between  the  Courts  of  Equity  and  the  Courts 

of  Common  Law. 

325.  Of  the    Line  of    Demarcation    between    the  Jurisdictions    of 

Courts  of  Equity  and  Courts  of  Common  Law. 

326.  Of  the  Topical  Jurisdiction  of  the  Courts  of  Equity. 

327.  Of  the  Indirect  Jurisdiction  of  Courts  of  Equity. 

328.  Of  the  Limitations  of  the  Jurisdiction  of  the  Courts  of  Equity. 
320.  Of  the  Proceedings  in  Courts  of  Equity. 

330.  Of  the  Special  Jurisdiction  of  Courts  of  Equity  over  Infants, 

Insane  Persons,  and  Incapables. 

331.  Of  the  Merger  of  the  Courts  of  Equity  and  the  Courts  of  Com- 

mon Law. 

SECTION   IV. 

OF    THE    COURTS    OP    PROBATE. 

§  332.   Of  the  Nature  and  Origin  of   Probate  Jurisdiction. 

333.  Of  the  Courts  of  Probate  in  the  United  States. 

334.  Of  the  Ordinary  and   Special  Jurisdiction  of   the  Courts  of 

Probate. 
835.   Of  the   Primary   and  Ancillary  Jurisdiction   of  the  Courts  of 
Probate. 


XXV111  TABLE    OF    CONTENTS. 

§  336.  Of  the   Jurisdiction  of   the  Courts  of  Probate  over  Testate 
Estates. 

337.  Of  the  Jurisdiction  of  the  Courts  of  Probate  over  Intestate 

Estates. 

338.  Of  the  Jurisdiction  of  the  Courts  of  Probate  over  Guardians 

and  Trustees. 

339.  Of  the  Importance  of  Courts  of  Probate. 


SECTION    V. 

OF    THE    COURTS    OF    ADMIRALTY. 

§  340.  Of  the  Nature  of  Admiralty  Jurisdiction, 

341.  Of  the  Origin  and  Development  of  Admiralty  Jurisdiction. 

342.  Of  Maritime  Torts  and  Contracts. 

343.  Of  the  Concurrent  Jurisdiction  of  the  Courts  of  Admiralty  and 

the  Courts  of  Equity  and  Common  Law. 

344.  Of  the  Topical  Jurisdiction  of  Courts  of  Admiralty. 

345.  Of  Admiralty  Jurisdiction  in  Rem. 

346.  Of  Proceedings  in  Admiralty. 

347.  Of  the  Courts  Exercising  Admiralty  Jurisdiction  in  England 

and  the  United  States. 


SECTION   VI. 

OF    COURTS    MARTIAL,    MILITARY    COURTS,    AND   PROVISIONAL 

COURTS. 

§  348.  Of  Courts  of  Extraordinary  Jurisdiction. 

349.  Of  Courts  Martial. 

350.  Of  Military  Courts. 

351.  Of  Provisional  Courts. 


SECTION  VII. 

OF    THE    FEDERAL    AND    STATE    COURTS 

352.  Of  the  Federal  Courts. 

353.  Of  the  Supreme  Court  of  the  United  States. 

354.  Of  the  Circuit  Courts  of  Appeals. 

355.  Of  the  Circuit  Courts. 

356.  Of  the  District  Courts. 

357.  Of  the  Court  of  Claims  and  the  Courts  of  the  District  of  Co- 

lumbia. 


TABLE   OF   CONTENTS.  XXIX 

§  358.  Of  the  Concurrent  Jurisdiction  of  Federal  Courts  and  State 
Courts. 

359.  Of   the  Common    Law  and   Equity   Powers  of    the   Federal 

Courts. 

360.  Of  the  Limited  Topical  Jurisdiction  of  the  Federal  Courts. 
301.  Of  the  Territorial  Jurisdiction  of  the  Federal  Courts. 

362.  Of  the  State  Courts  and  Territorial  Courts. 

363.  Of  Writs  of  Error,  and  the  Removal  of  Causes,  from  State 

Courts  to  the  Federal  Courts. 

364.  Of  the  Future  Development  of  the  Judicial   Systems  of  the 

United  States. 


CHAPTER   XL 

OF  FICTIONS  AND  PRESUMPTIONS. 

§  365.  Of  the  Meeting  of  Law  and  Fact  in  the  Borderland  of  Fictions 
and  Presumptions. 
366.   Of  the  Necessity  for  Fictions  and  Presumptions. 

SECTION  I. 

OF    LEGAL    FICTIONS. 

§  367.  Of  the  Nature  of  Legal  Fictions. 

368.  Of  the  Falsehood  and  Possibility  of  the  Facts  Assumed  in  a 

Legal  Fiction. 

369.  Of  the  Subordination  of  Legal  Fictions  to  Essential  Justice. 

370.  Of  Fictions  as  Substitutes  for  Legislation. 

371.  Of  the  Classes  of  Legal  Fictions. 

372.  Of  the  Invention  and  Abandonment  of  Fictions. 

SECTION   II. 

OF    PRESUMPTIONS. 

§  373.  Of  the  Nature  of  Presumptions. 
374.  Of  the  Distinctions  between  Presumptions  of  Law  aud  Pre- 
sumptions nf  Fact. 
:>7.">.  of  the  Classes  of  Presumptions  pf  Law. 

376.  Of  the  Classes  of  Presumptions  of  Fact. 

377.  Of  Mixed  Presumptions. 

378.  Of  the  Number  and  Variety  of  Presumptions. 


XXX  TABLE    OF   CONTENTS. 

§  379.   Of  Presumptions  against  Ignorance  and  Wrong. 
3S0.  Of  Presumptions  that  Persons  Assert  their  Rights. 

381.  Of  Presumptions  that  the  Course  of  Nature  is  Observed. 

382.  Of  Presumptions  that  the  General  Usages  of  Society  are  Ob- 

served. 

383.  Of  Presumptions  in  Reference  to  Time. 

384.  Of  Presumptions  that  Existing  States  of  Fact  Continue. 

385.  Of  Presumptions  in  Reference   to    Rights,  Duties,  and  Lia- 

bilities. 

386.  Of  Conflicting  Presumptions. 

387.  Of  the  Relation  of  Legal  Fictions  and  Presumptions  to  the 

Law  of  Evidence. 


CHAPTER  XII. 

OF   THE   DEPARTMENTS   OF  LAW. 

§  388.  Of  the  Practical  Classification  of  Laws. 

389.  Of  the  Law  of  Real  Property. 

390.  Of  the  Law  of  Civil  Actions. 

391.  Of  the  Laws  of  Practice,  Pleading,  and  Evidence. 

392.  Of  the  Law  of  Crimes. 

393.  Of  the  Law  of  Torts. 

394.  Of  the  Law  of  Domestic  Relations. 

395.  Of  the  Law  of  Personal  Property. 

396.  Of  the  Law  of  Estates. 

397.  Of  the  Law  of  Contracts. 

398.  Of  the  Law  of  Corporations. 

399.  Of  the  Law  of  Equity. 

400.  Of  the  Law  of  Admiralty. 

401.  Of  Constitutional  Law. 

402.  Of  International  Law. 


Index Page  365 


REFERENCE    TABLE 

SHOWING  THE  VOLUMES  AND   PAGES  OF  THE  STATE  REPORTS  IN 
WHICH  THE  CASES  CITED  IN  THE  TEXT  MAY  BE  FOUND. 


§6. 

54  I).  217 

7. 

79  I).  123 

8. 

20  I).  360 

48  1).  178 

79  1).  236. 

13. 

49  1).  008 

11  1!.  95  . 

49  R.  462 

15. 

15  St.  672 

13  St.  290 

16. 

22  R.  529 

17. 

51  I).  248 

26  D.  598 

43  D.  172 

18. 

5  I).  727 

92  1).  698 

8  D.  658 

2 2  1).  370 

96  I).  L86 

91  I).  523 

47  R.  158 

30  R.  746 

7:;  1).  122 

19. 

100  I).  53 

84  1).  51  . 

15  D.  168 

20. 

13  1>.  2S2 

B9  D.  157 

27  St.  783 

21 

i:;  I).  597 

16  1).  163 

27  I).  532 

22 

21  R.  179 

11  Ark.  519. 

17  Cal.  199. 

2  Bland  (Md.),  209 

2  Ela.  102. 

30  Conn.  149. 

2  Strob.  (S.  C.)  508. 

58  III.  509. 

97  Ind.  421. 

128  Pa.  St.  217. 

4  1  Kansas.  336. 

34  Mich.  283. 

2  Zab.  (N.J 

15  Pick.  (.Mass.)  266. 

4  S.  &  M.  (Miss.)  99. 

2  Martin  (La.),  138. 
28  Md.  197. 

3  Serg.  &  R.  (Pa.)  490. 
11  Pick.  (Mass.: 

26  Iowa,  170. 

24  Ark.  580. 

107  III.  517. 

46  Wis.  334. 

11  Rich.  (S.  C.)  5C9. 

31  Md.  38. 
:;::  Mo.  347. 

6  Cowen  (N.  Y 
l.Littdl  (Ky.t.  216. 
1  Morris  ( Iowa),  141. 

80S.  I 

17  X.  II.  286. 

1  Mod.  (Ky.)  526. 

6  Vi    • 

52  Ind.  347. 


:xxii  REFERENCE   TABLE.                         §§  25-28 

§  25.     76  D.~409 21  Ark.  592. 

88  D.  630 37  Vt.  647. 

6  St.  653 29  W.  Va.  424. 

51  R.  676 110  111.  16. 

37  R.  412 26  Minn.  389. 

17  IX  179     . 6  Mart.  N.  S.  (La.)  69. 

13  D.  161 3  Marsh.  A.  K.  (Ky.)  280. 

22  D.  652 2  Paige  (N.  Y.),  419. 

26.  44  I).  708 3  Oilman  (111.),  435. 

35  I).  653 25  Wend.  (N.  Y  )  64. 

53  D.  301 3  N.  Y.  312. 

1  St.  307 79  Me.  292. 

6  St.  653 29  W.  Va.  424. 

6  St.  676 29  W.  Va.  751. 

29  D.  707 2  Green  Oh.  (N.  J.)  220. 

77  D.  534 4  Minn.  412. 

45  D.  399 1  Halst.  Ch.  (N.J.)  454. 

82  D  223 44  N.  H.  321. 

3  St.  115 82  Va.  433. 

2  St.  177 112  Ind.  183. 

14  St.  500 70  Mich.  297. 

39  St.  196 148  111.  536. 

71  D.  105 8  Fla.  144. 

97  D.  449 42  Miss.  194. 

66  D.  515 7  Grny  (Mass.),  47'J. 

71  D.  555  .     .     .     .'   .     .     .  45  Me.  367. 

56  D.  257 21  Ala.  501. 

37  St,  118 32  Fla.  499. 

56  D.  206  .     .     .     .     .     .     .  20  Ala.  548. 

27.  75  D.  445 7  Jones  (N.  C),  14. 

15  D.  612 3  McCoril  (S.  C),  6 

67  I).  258 4  Jones  (N.  C),  1. 

42  D.  537 16  Vt.  683. 

40  D.  542 6  Watts  &  S.  (Pa.)  80. 

20  R.  160 54  N.  H.  539. 

34  R.  434 57  Miss.  45. 

34  R.  449 57  Miss.  331. 

23  1).  526 8  Greenleaf  (Me.),  405. 

26  D.  251 5  Yerger  (Tenn.),  41. 

25  St.  708 90  Tenn.  705. 

17  1).  735 4  McCord  (S.  C.),  241. 

10  I).  709 1  Marsh.  A.  K.  (Ky.)  76. 

7  I).  134 13  Mass.  237. 

21  D.  589 3  Vt.  353. 

57  I).  349 25  N.  H.  514. 

28.  23  St.  780 83  Me.  305. 

34  D.  537 5  Whart.  (Pa.)  128. 

23  D.  654 13  Pick.  (Mass.)  1. 

14  R.  580 110  Mass.  137. 


§§  28-35 


REFERENCE   TABLE. 


XXX1U 


§28. 


29. 


30. 


31. 


32. 
33. 


34 


756 
194 
569 
732 
314 
71 


35. 


32  R.  152 
7  D.  229 
1  St.  379 
10  D.  747 
65  D. 
65  D. 

18  St. 
62  D. 
46  It. 

10  1). 
84  1).  741 

33  I).  177 
17  1).  756 
4  R.  290 
50  R.  381 
58  It.  53 
56  I).  85 

70  D.  494 
7  D.  592 

4  St.  207 
45  1).  536 

5  St.  905 
1  D.  20  . 
21  D.  70 
30  I).  425 

19  D.  409 
74  D.  83 
23  St.  858 
89  D. 172 
74  1).  291 
7  St.  418 
44  I).  283 
29  D.  33 
17  I).  311 
83  D.  461 

11  R.  731 

14  St.  879 

16  St.  408 
27  St.  689 

6  D.  58  . 
1<»  I).  444 
21  1).  782 

71  1).  431 
h  St.  886 
1  St.  606 

34  1).  340 

15  1).  354 

17  St.  686 
71  St.  418 


41  Mich.  191. 

14  Mass.  457. 

67  Md.  53. 

1  Marsh.  A.  K.  (Ky.)  436. 

8  Ind.  195. 

27  Vt.  268. 

100  Mo.  584. 

26  Ala.  446. 

71  Ala.  248. 

1  Marsh.  J.  J.  (Ky.)  236. 

17  Wis.  230. 

10  Vt.  71. 

4  McCord  (S.  C),  387. 

58  Me.  254. 

60  Wis.  511. 

108  Ind.  472. 

23  Vt.  355. 
31  Ala.  323. 

1  South  (N.  J.),  231. 
84  Ky.457. 
14  Ohio,  222.  • 

24  Texas  App.  562. 

1  Kirby  (Conn.),  407. 

2  Paige  (N.  Y.),  79. 
10  Yerger  (Tenn.),  10. 

1  Paige  (N.  Y.),  178. 

21  111.  137. 
152  Mass.  585. 
31  Cal.  273. 

8  Iowa,  17. 
115  Ind.  148. 

2  Rich.  (S.  C.)  148. 
1  Whart.  (Pa.)  52. 

1  Bland  (Md.),  370. 
4  Met.  (Ky.)  227. 
62  X.  Y.  467. 
30  S.  C.  74. 
121  Ind.  433. 
146  Pa.  St.  289. 

9  Mass.  225. 

7  Serg.  &R.  (Pa.)  90. 
9  Conn.  LI  2. 
7  Iowa,  60. 
65  Mich.  279. 
<;i  Mich.  384. 

22  Wend.  (N.  Y.)  520. 
1  Cowen  (N.  Y.),  207. 
Kil  X.  ('.  515. 

88* Md.  868. 


XXXIV 


REFERENCE   TABLE. 


§§  35-40 


§  35.     GO  D.  310 

83  D.  514 
55  I).  480 
45  D.  700 
89  1).  705 
39  D.  744 
22  1).  372 
1  R.  309 
47  St.  403 
66  D.  414 
92  I).  428 
97  D 

36.  17  1).  722 

50  D.  329 

51  D.  253 
14  R.  70 
86  R.  422 
8R.  181 

6  R.  703  . 

84  D.  220 
21  D.  732 
63  St.  72 
16  D.  253 

19  I).  402 

37.  42  St.  743 

38.  97  U.  162 
99  I).  634 

36  D.  398 
41  D.  458 
83  D.  231 

31  R.  360 
60  R.  193 
40  R.  556 
72  D.  484 

37  St.  811 

20  R.  292 
43  R.  799 
45  D.  558 
36  R.  13  . 
26  St.  44 
69  D.  642 
80  D. 154 
47  1).  210 

39.  54  1).  614 

32  D.  68 
74  D.  503 
79  1).  07 

40.  15  St.  386 
6  St.  913 


9  Gratt.  (Va.)  704. 

52  Me.  304. 

13  lied.  (N.  0.)  106. 

4  Pa.  St.  375. 

53  Me.  451. 

6  Met.  (Mass.)  415. 
2  Dev.  Eq.  (N.  C.)  115. 
27  Iowa,  534. 
163  Mass.  362. 

5  Gray  (Mass.),  279. 
23  Iowa,  333. 

4S  N.  H.  133. 

4  McCord  (S.  C),  183. 

6  Ga.  324. 

2  Zab.  (N.  J.)  117. 
02  111.  196. 
53  Md.  376. 
68  Pa.  St.  342. 
45  Ala.  378. 
27  N.  Y.  9. 

9  Conn.  102. 
119  Cal.  216. 

4  Greenleaf  (Me.),  220. 

1  Paige  (N.  Y.),  171. 
143  N.  Y.  442. 

17  Midi.  9. 
31  Ind.  485. 

2  Ala.  43. 

7  Met.  (Mass.)  500. 
31  111.  385. 

56  Miss.  269. 
81  Ala.  577. 
86  N.  Y.  554. 

18  N.  Y.  9. 

31  Texas  Crim.  Rep.  318 

50  Ala.  149. 

20  W.  Va.  713. 

14  Ohio,  555. 

34  Ark.  341. 

54  Ark.  283. 

10  X.  Y.  58. 
4:1,  X.  H.  224. 

4  Denio  (X.  Y.),  9. 

33  Me.  114. 

6  Dana  (Ivy.),  87. 

47  Me.  548. 

37  Ala.  496. 

116  N.  Y.  67. 

44  N.  J.  Eq.  564. 


§§  40^3 


REFERENCE    TABLE. 


XXXV 


§40.     44  St.  258 

46  I  J.  280 
77  1).  572 

1  R.  334 
68  I).  465 
22 D.  655 

41.  22  I '.  563 
53  1).  164 
20  D.  402 
18  St.  928 

2  St.  10-3 
10  St.  618 
58  I).  59 

65  1).  349 

42.  66  1).  288 
86 D.  436 
98  I).  78 
76  I).  440 
23  D.  549 
53  I 

45  I).  171 
64  St.  854 
79  D.  73 

47  1).  120 

82  D. 144 

83  1).  351 
31  D.  267 
13  St.  647 
39  I).  D2:] 
73  D.  323 
10  St.  94 
26  St.  475 

St.  430 
60  D 

98  D.  587 
;;:;  St.  917 
St.  362 
in  I).  158 
66  !>.  137 
87  St.  374 
6  D.  105 
8  R   422 
94  D.  B84 
16  D.  < '.7:: 
66  1).  137 
■17  R.  112 
3(    in") 
43.    6  R.  675 


78  Mel.  26. 

12  Ala 

29  Mo.  271. 

42  Vt.  350. 

21  Ga.  447. 

2  Paige  (N.  T.),  422. 

7  Wend.  (N.  Y.),  47. 

21  N    II.  52. 

2  Bland  (Md.),  544. 

90  Wis.  272. 

121  III.  388. 

87  Tenn  244. 

•1  Swan  (Tenn.),  321. 

22  Md.  468. 
28  Ala.  332. 
12  Ark.  657. 

1  Winst.  (N.  C.)  2G6. 
Phill.  (X.  C. 

14  Cal.  506. 

9  Greenleaf  (Me.),  140. 

22  X.  II.  118. 

4  Gill  (Md.),  487. 
4:5  W.  Va.  211. 
37  Ala 

10  Mo.  368. 
32  Mo  532. 
21  Ind.  404. 

6  Paige  (X   Y.),  366. 
31  W.  Va.  '.'4. 

23  Me.  305. 
30  Vt.     - 
118  Ind.  34. 
128  X.  Y.  2 

15  '  Mass.  H5. 
25  Vi    220. 

41   Vt.  311. 
64  Vt.  89. 
47  Minn.  250. 

R.  (Pa.)  247 
4  Iowa.  321. 
115  Mo.  1. 
10  Mass.  152. 
69  Me 
43  Ala.  816. 
1  Aiken  (Vt.),  174 
4  Iowa,  321. 

mi  Kv.  580. 
20  <  Hiio  St.  :)71 


XXXVI  REFERENCE   TABLE.  §§  -13-47 

§  43.     78  D.  216  ......     .  22  N.  Y.  450. 

99  D.  587 31Ind.  92. 

90  D.  358 41  Miss.  119. 

11  D.  396 7  Johns.  Ch.  (N.  Y.)  57. 

57  D.  583 Bush.  Eq.  (N.  C.)  1. 

4  R.  631  44  N.  Y.  27. 

9  R.  679  35  Ind.  181. 

32  1).  362 9N.  H.  309. 

9  St.  319 96  Mo.  22. 

88  D.  49  10  Minn.  50. 

58  St.  490 106  Mich.  384. 

46  St.  122 101  Ala.  433. 

83  D.  772 8  Minn.  236. 

76  D.  363 21  Ark.  268. 

57  D.  330 25  N.  H  343. 

13  St.  273 41  Kansas,  236. 

99  D.  587     .......    31  Ind.  92. 

57  St.  163 145  Ind.  154. 

33  D.  168 Meigs  (Tenn.),  620. 

44.  5  D.  659 2  Overton  (Tenn.),  176. 

49  D.  596 2  Strob.  (S.  C.)  257. 

82  D.  395 26  N.  Y.  9. 

26  D.  370 1  Port.  (Ala.)  222. 

4  D.  170  6  Mass.  506. 

29  St.  170 61  Conn.  50. 

45  D.  145 4  Gill  (Md.),  425. 

24  St.  166 87  Mich.  340. 

45.  81  D.  597 18  Md.  305. 

1  D.  643  2  Bay  (S  C),  211. 

19  R.  695 49  Ind.  573. 

98  D.  432 5  Cold.  (Tenn.)  471. 

25  R.  718 54  Ala.  510. 

100  D.  314        44  Mo.  465. 

51  D.  649 3  Strob.  (S.  C.)  552. 

71  D.  370 11  Ind.  557. 

100  D.  173  . 18  Mich.  314. 

31  R.  331 38  Mich.  744. 

33  St.  414 110  Mo.  7. 

33  St.  88 94  Ala.  31. 

46.  8  R.  488 66  N.  C.  59. 

63  St.  174 39  Fla.  477. 

15  D.  322 3  Cowen  (N.  Y.),  686. 

47.  41  R  418 27  Kan.  442. 

25  D.  677 4  Dev.  (N.  C.)  1. 

7  R.  87 26  Wis.  428. 

41  St.  606 99  Mich.  358. 

39  D.  187 3  Humph.  (Tenn.)  480. 

64  D.  680 25  Pa.  St.  23. 

43  D.  740 2  Denio  (N.  Y.),  272. 


§§  47-60  REFERENCE   TABLE.                              XXX\ii 

§47.     83  D.  367 21  Ind.  516. 

48.  72  D.  169 36  Miss.  273. 

49.  44  D.  574 17  Conn.  585. 

3  St.  176 15  Oregon,  456. 

19  D.  61       1  Marsh.  J.  J.  (Ky.)  206. 

9  R.  409       38  Conn.  449. 

24  St.  276 68  Miss.  292. 

10  St.  357 64  N.  H.  13. 

37  St.  478 21  Nevada,  47. 

10  St.  280 79  Me.  484. 

8  St.  17 30  W.  Va.  95. 

28  St.  163 129  Ind.  44. 

45  D.  355 10  Mo.  117. 

30  D.  33       15  Wend.  (N.  Y.)  113. 

50.  79  D.  468 17  Ind.  169. 

40  I).  131 8  Mo.  148. 

94  D.  571 21  Wis.  621. 

10  D.  582 2Nott  &  McC.  (S.  C.)  168. 

68  D.  735 18  B.  Mon.  (Ky.)  693. 

18  D.  432 8Covven  (X.  Y.),  178. 

51.  94  1).  461 17  Gratt.  (Va.)  375. 

20  D.  95       8  Conn.  101. 

89  D.  605 lBush  (Ky.),  34. 

21  D.  181 -5  Wend.  (N.  Y.)  170. 

61  D.  470 2  Gray  (Mass.),  410. 

52.  40  1).  305 4  Hill  (N.  Y.),  630. 

12  U.  201 Breese  (111.),  401. 

95  D.  418 46  111.  398. 

14  I).  352 3  N.  H.  210. 

90  D.  713 34  N.  Y.  389. 

15  D.  322 -3  Cowen  (N.  Y.),  680. 

85  D.  643 22  Md.  170. 

35  I).  551 23  Wend.  (N.  Y.)  193. 

63  1).  768 3  Gray  (Mass.),  468. 

74  D.  676 14  Gray  (Mass.),  226. 

12  D.  596 1  Mill  (S.  C),  55. 

87  1).  578 28  Md.  471. 

33  D.  346 1  Ark.  570. 

48  1).  652 2  Cush.  (Mass.)  68. 

53.  3  D.  189 4  Mass.  1. 

23  It.  661 54  Ind.  501. 

55.  84  I).  700 16  Wis.  148. 

33  D.  546 9  Dana  (Ky.),  177. 

56.  68  D.  735 18  B.  Mon.  (Ky.)  693 

84  1).  193 26  N.  Y.  356. 

57.  95  D.  350 37  Ga.  532. 

58.  29  It.  682 1  MacArthur  (D.  C),  169 

97  1).  248 41  Mo  63. 

60.     88  I).  515 49  Pa.  St.  519. 


xxxv'ii  REFERENCE   TABLE.  §S  61-75 

§61.  9  R.  489 28  Wis.  90. 

62.  24  D.  198 i0  Wend.  (N.  Y.)  9 

7(3  D.  662 30  Ga.  440. 

63.  11  D.  351 20  Johnson  (N.  Y  )  693 

64-  44  1).  241 2Rich,Eq.  (S.  C.)  43. 

65.  55  D.  87  , 23  Miss.  167. 

66.  83  D.  502 52  Me.  105. 

23  St.  37 65  N.  H.  248. 

321X423 19  Wend.  (N.  Y.)  11. 

55  D.  350  5  N.  Y.  422. 

48  St.  706 44  Nebraska,  82 

59  D.  107     .     .     .  •  .    .    .     .     5  Md.  186. 
61  D-  530 27  Miss.  704. 

39  D.  142 1  Speer's,  Eq.  (S.  C.)  1. 

60  D.  135 1  Sneed  (Tenn.),  63 

67.     10  R.  698 71  Pa.  St.  302. 

68     54  D.  55  11  Humph.  (Tenn.)  536. 

37  D-  525 2  Watts  &  S.  (Pa.)  568. 

39  St.  196 148  111.  536. 

69.     70  D.  372 20  Texas,  24. 

61  D.  237 38  Me.  171. 

34  St.  311 157  Mass.  542. 

13  St.  896 31  W.  Va.  790. 

71.     34  St.  541 49  0hio  St.  137. 

72-  95  D.  263 35  Conn.  374. 

73  !>•  058 14Cal.  424. 

33  St.    72 97  Cal.  276. 

10  D-  34  1  Greenleaf  (Me.),  79. 

53  1).  450 13  pa.  st.  133. 

73-  41  R.  221  .......  131  Mass.  258. 

67  D.  471 27  Pa.  St.  339. 

7:>I>.  574 33  Pa.  st.  33. 

74-  41D.109 5  Ark.  595. 

;;  st-  492 122  111.  293. 

22  D.  679   ^ 3  paj?e  (N.  Y.),  45. 

69  D.  389 34  Miss.  227. 

75  D.  518 10  Ohio  St.  372. 

87  D.  672 10  Allen  (Mass.),  448 

35  St.  385 85  Me.  532. 

4:!  St.  105 104  Cal.  326. 

49  D.  604 2  Strob.  (S.  C.)  457. 

85  D-  613 1  Duvall  (Ky.),  143. 

94  D.  378 .  40  Vt.  81. 

46  D.  181 19  Vt.  74. 

75      15  D.  100 1  Mon.  (Ky.)  206. 

99  D.  300 37  Cal.  543. 

70  St.  149 107  Iowa,  143. 

20  R.  504 63  N.  Y.  62. 

17  R-  702 47  ind.  407. 


;§  75-84 


REFERENCE  TABLE. 


XXXIX 


75. 
76. 

77. 


78. 


79. 


82. 


02  R.  353 
16  D.  705 

13  D.  550 

9  1 ).  402 
18  1).  708 

14  D. 
11  1). 
50  St. 
64  St. 
^7  1). 
57  D. 


80. 


81.  7 


83. 


84. 


310 
551 
146 
257 
391 
400 
52  1).  248 
88  D.  579 
83  D.  329 
46  D.  619 
33  1).  481 
54  D.  522 

95  I).  529 

96  D.  331 
7:;  1).  319 
02  1).  625 
90  D.  617 
50  D.  471 
63  D.  450 

35  D.  400 
79  I).  418 
39  St.  381 

95  !).  654 
59  St.  543 
50  D.  534 

36  St.  681 
72  I).  685 
35  D.  292 

33  D.  050 
18  1).  451 

35  I).  661 
41  1).  109 
63  1).  106 

96  1>.  747 

41  D.  090 
94  D.  84 

12  D.  234 
57  D.  108 
62  1).  112 
18  St.  192 

13  St.  2:1 

34  St.  541 

36  D.  L86 

42  St.  677 


76  Ala.  572. 
2  Aiken  (Vt.),  255. 
1  Cowen  (N.  Y.),  513. 
6Serg.  &  K.  (Pa.)  12 
6  Rand.  (Va.)  165. 

1  Mo.  004. 

2  Halst.  (X. -J.)  352. 
159  111.  169. 

91  Me.  492. 
is  Iowa,  280. 
3Zab.  (N.  J.)  402. 
ID  Ark.  516. 

51  Pa.  St.  228. 

20  [nd.  W-i. 
27  Me.  50!». 

8  Dana  (Ky.),  114. 

12  B.  Mon.  (Ky.)  212. 

48  111.  172. 

5  Bnsli  (Ky.),  68. 
30  Vt.  476. 
27  Vt.  140. 
18  N.  J.Eq.  178. 

13  111.  548. 

13  1'a.St.  133. 
11  X.  H.  19. 
10  In,l.  172. 

52  Kansas,  774. 

29  Ind.  465. 

49  Nebraska,  412. 

14  Pa.  St.  241. 
70  Miss.  t;69. 

30  Pa.  St.  12. 

24  1'kk.  (Mass.)  49. 

Hi  Me.  224. 

8  Cowen  (X.  V.),  387. 

2:)  Wend.  (N.  V.)  193. 

5  Ark.  595. 

13  Smedes  &  M.  (Miss.)  569 

99  Mass.  207. 

15  X.  II.  ICC. 
5i;  Pa.  St.  325. 

1  Blackf.  (Ind.)  267. 

21  Miss.  27s. 
8  Ga.  186. 
84  Cal.  .".27. 
87  Ala.  206. 

49  o!,!,,  St.  137. 
in  Watts  (Pa.),  397. 
4ii  Nebraska,  170. 


xl 


REFERENCE   TABLE. 


§§  85-93 


§85 

47  St.  153  ..  . 

...    94  Ga.  306. 

41  St.  151  ..  . 

.  ...  102  Cal.  55. 

38  St.  552  ..  . 

.  ...  52  Minn.  239. 

33  St,  172  ..  . 

.  ...  97  Cal.  276. 

29  St.  596  ..  . 

.  ...  22  Oregon,  218. 

26  St.  743  ..  . 

.  ...  80  Texas,  344. 

24  St.  887  ..  . 

.  ...  91  Ala.  224. 

86. 

13  D.  522  ... 

.  .  .  .  1  Cowen  (N.  Y.),  260. 

31  St.  63   .  -  . 

.  .  .  .  84  Texas,  392. 

68  D.  290  .  .  . 

.  .  .  .  8  Cal.  52. 

62  D.  424  ..  . 

.  .  .  .  1  Sneed  (Tenn.),  637. 

87. 

12  D.  495  ..  . 

.  .  .  ,  7  Martin  (La.),  69. 

28  D. 650  ..  . 

.  .  .  .  5  Rawle  (Pa.),  151. 

59  D. 708  .  ,  . 

.  ...  20  Pa.  St.  260. 

95  D.  107  ... 

.  ...  35  Cal.  365. 

50  R.  505  .  .  . 

.  ...  80  Mo.  310. 

52  R.  436  ... 

.  ...  64  Iowa,  220. 

39  R.  818  ... 

.  ...  97  Pa.  St.  493. 

59  St.  193  ..  . 

.  ...  117  Cal.  370. 

68  St.  852  ..  . 

...  188  Pa.  St.  116. 

88. 

33  D.  656  ... 

...  16  Me.  224. 

89. 

99  D.  300  ..  . 

...  37  Cal.  543. 

56  D.  666  ...  . 

...  34  Me.  411. 

90. 

13  D.  588  ..  . 

...  1  Ohio,  36. 

58  D.  439  .  .  .  . 

...  22  Conn.  530. 

91  D.  672  ..  . 

...  34  Cal.  48. 

37  D. 38   .  .  .  . 

...  20  Me.  41. 

87  D.  391  ... 

.  .  .  18  Iowa,  280. 

100  D.  570  .  .  .  . 

...  60  Pa.  St.  367. 

91. 

33  St.  355  -  .  .  . 

...  49  Kan.  107. 

44  St.  454  ...  . 

.  .  .  115  N.  C.  324. 

17  D. 159  .  .  .  . 

o  .  .  6  Mon.  (Ky.)  427. 

16  R.  587  .  .  .  . 

.  .    65  111.  328. 

21  R.  39   .  .  .  . 

...  79  Pa.  St.  54. 

31  St.  653  .  .  .  . 

...  48  Minn.  319. 

40  St.  837  ...  . 

...  86  Texas,  350. 

42  St.  159  ...  . 

...  64  Conn.  101. 

43  St  147  ...  . 

...  104  Cal.  649. 

6  D.  619   .  .  .  . 

...  4  Desaus.  (S.  C.)  578 

43  D.  457  .  .  .  . 

...  2  Doug.  (Mich.)  124, 

68  D.  544  .  .  .  . 

...  18  111.  297. 

27  D.  33   .  .  .  . 

...  2  Green  (N.  J.),  222. 

53  D.  624  .  .  .  . 

.  .  .  1  R.  I.  312. 

92. 

22  R. 133   .  .  .  . 

...  72  111.  50. 

46  St.  285  ...  . 

...  20  Color.  203. 

93 

31  D. 72   .  .  .  . 

.  .  .  9  Gill  &  J.  (Md.)  365. 

6  St.  745   .  .  .  . 

...  120  Pa.  St.  624. 

67  D. 160  .  .  .  . 

...  14  N.  Y.  380. 

29  D.  591  .... 

.  .    18  Pick.  (Mass.)  328. 

§§  93-103 


REFERENCE   TABLE. 


Xli 


§93. 

84  D.  470 

95. 

5  D.  638 

8  D.  128 

66  D.  257 

42  St.  379 

47  St.  323 

44  St.  838 

09  D.  7*8 

96. 

42  St.  U 

3  St.  586 

46  D. 690 

76  D.  508 

65  D.  557 

53  D.  624 

66  D.  490 

97. 

45  St.  133 

45  St.  700 

100  D.  546 

62  D.  412 

51  R.  166 

57  St.  60 

26  St.  639 

21  St.  798 

43  I).  685 

49  D. 287 

99  D. 427 

3  St.  797 

98. 

13  St.  590 

36  St.  130 

33  St.  331 

11  D.  575 

19  D.  306 

57  St.  373 

99. 

90  D.  617 

22  D.  785 

84  1).  184 

100. 

99  I).  300 

101. 

25  I).  ::<; 

38  R.  222 

94  1).  84 

69  D.  661 

102. 

22  D.  679 

40  I).  705 

55  D. 266 

69  D.  389 

56  D.  522 

103 

86  I).  202 

44  D.  83 

65  D.  535 

45  Pa.  St.  9. 

2  Bibb  (Ky.),  576. 
10  .Mass.  94. 

41  Me.  512. 

161  Mass.  10 

87  Me.  234. 

66  Vt.  248. 

57  Me.  143. 

99  Ala.  1. 

10  Color.  327. 

12  Met.  (Mass.)  371. 

16  Cal.  145. 

25  Conn.  171. 

1  R.  I.  312. 

7  Gray  (Mass.),  393. 
154  111.  458. 

94  Tenn.  123. 
60  Pa.  St.  124. 

8  Ga.  486. 
105  Pa.  St.  49. 
68  Conn.  29. 

1  N.  Dakota,  435. 

47  Ohio  St.  180. 

1  Denio  (N.  Y.),  414. 

1  N.  Y.  47. 

38  Cal.  528. 

19  Nevada,  103. 

62  N.  H.  537. 

6  Wash.  134. 

141  111.  519. 

8  Serg.  &  R.  (Pa.)  73. 

8  Pick.  (Mass.)  90- 
84  Md.  129. 

18  N.  J.  Eq.  178. 

5  Ohio.  162. 

16  N.  J.  Eq.  13. 
37  Cal.  543. 

9  Conn.  436. 
44  Mich.  7. 

66  Pa.  St.  325. 
16  N.  Y.  97. 

3  Paige  (N.  Y.),  45. 
16  Vt.  745. 

4  X    Y.  419. 
34  Miss.  227. 
3  Ind.  481. 

6  Wliart.  (Pa.)  25. 

3  Ired.  Eq.  (N.  C.)  613. 
6  Cal.  590. 


xlii 


REFERENCE   TABLE. 


§§  103-109 


§  103.     42  D.  716 

104.  39  D.  778 
40  1).  710 
18  R.  345 

105.  15  St.  460 
62  St.  -til 

106.  69  D.  565 
40  St.  109 
36  R.  840 
69  D.  489 
30  St.  214 

35  St.  515 
72  1).  730 

36  St.  88 

88  D.  248 

40  St.  109 
30  D. 185 
66  D.  627 

44  St.  222 

45  St.  252 
2  St.  85 

107.  19  St.  490 
34  D  625 
36  1).  441 

05  I).  452 

29  St.  75D 

6  St.  310 

16  St.  578 
'.'2  1).  73 

17  I).  351 
16  D.  189 
36  St.  438 

41  St.  -_'4s 
47  St.  258 

108.  55  D.  347 
22  R.  507 
47  St.  596 

89  I).  150 
94  1).  461 
6  St.  -^i; 
in  St.  35 
36  st.  138 
27  I).  95 
15  St.  840 
32  1).  730 

109.  43  D.  719 
49  1).  412 

30  St.  832 
29  St.  758 


17  Conn.  40. 

7  Met.  (Mass.)  276. 

2  Rob.  (Va.)  209. 

10  Minn.  418. 

117  n.  y.  i. 

118  Cal.  556. 

2  Dutch.  (N.J.)  148. 
7  Houston  (Del.),  44. 
50  Wis.  180. 

34  N.  II.  351. 

130  Intl.  149. 

158  Mass.  509. 

31  Pa.  St.  175. 

92Tenn.  335. 

31  N.  Y.  164 

7  Houston  (Del.),  44. 

7  Ohio,  31. 
22  Mo.  384. 
95  Ky.  239. 
88  Iowa,  674. 

121  111.  288. 

122  N.  Y.  268. 

1  Humph.  (Tenn.)  156. 

3  Ala.  137. 
21  Ga.  80. 
88  Va.  905. 
03  Mich.  396. 

73  Mich.  288. 
37  Ga.  277. 

6  Pick.  (Mass.)  187. 

5  Mart.  N.  S.  (La.)  409. 

144  111.  336. 

19  Color.  236. 

139  Ind.  214. 

5  N.  Y.  369. 

34  Mich.  125. 

57  Minn.  115. 

26  Ind.  17. 

17  Gratt.  (Va.)  375. 

78  Ga.  241. 

117  Ind.  12i'.. 

144  III.  336. 

11  Wend.  (X.  Y.)  539. 

74  Texas,  404. 

8  Ohio,  543. 

1  Denio  (N.  Y.),  505. 

9  Ired.  (N.  C.)  73.  ' 
15ii  pa.  St.  589. 

88  Va.  992. 


§§  100-131  REFERENCE    TABLE.  xllii 

8  109.     34  St.  839 5  Wash.  1. 

63  D.  345 17  111.143. 

83  1).  557 20Md.468. 

17  St.  732 18  Oregon,  271. 

45  St.  853 3b  W.  Va.  177. 

78 D.  342 35  Pa.  St.  324 

1).  310 3N.  Y.  Hi3. 

55  1).  347 5  N.  ^ 

24  K.  552 35  Mich.  296. 

29  st  730 88  V:l'  40-- 

2R.368  '. 19  Ohio  St.  19. 

92  1).  73  37  Ga.  277. 

17  St.  696  ........  1"!  X.  c.  714. 

35  St.  152 98Cal.73. 

47  St.  525 102  Mich.  21 

110.     38  D.  609 3  Hill  (N.  Y.),  531. 

45  St.  114 154  111.  141. 

34  St.  17 31  Fla.  111. 

30  St.  373 84  Me.  499. 

46  St.  700 4  S.  Dakota,  17. 

7'..  1).  721 1  Allen  (Mass.),  172. 

33  R.  154 51  Iowa,  687 

6  R.  196       104  Mass.  87. 

9R.382 38  Conn.  308. 

is  k.  762 56  Vt.  228. 

82  1)  550 43  Pa.  St.  212. 

111.  07  I).  748 29  Vt.  12. 

21  K.  661 52  Miss.  53. 

3t.  515 >     •  158  Mass.- 

112.  78  1).  571 25  Texas  Sup.  281. 

8  St.  744 112  X.  V.  310. 

94  1).  605 42  Ala.  548. 

12D.516 7  Martin  (La.),  571. 

18  1).  194 7  Mon.  (Ky.)  439. 

41  D.  549 1  Doug.  (Mich.)  225. 

63  1).  130 6Cal.288. 

10  St.  712 87  Tenn.  725. 

22  St.  (124 127  Ind.  2"  l. 

121.     14  St.  693 51  N.  J.  Law.  432. 

127.    4  St.  465 109  X.  Y.  389. 

87  St.  206 147  111.  66. 

I>;  St.  815 155  111.  98. 

111).  575 3  Hawks  (X.  C.K74. 

65  1)    Ki3 12  Iredell  (X.  C),  61. 

17  St.  ts'.i 163  Mass.  57  1. 

129.    66  1).  290 42  Mr.  li\< 

75  I).  714 12  Rich.  (S.  C.)  13. 

131.    15  1).  7S 1  Mon.  (Ky.)  10. 

85  D.  240  . 32  Conn.  21. 


Xliv  REFERENCE   TABLE.  §§  131-150 

§  131.  31  R.  42 60  Ala.  313. 

72  D.  738 31  Pa.  St.  225. 

78  D.  186 22  N.  Y.  249. 

31  R.  34 60  Ala.  89. 

17  I).  238 5  Greenleaf  (Me.),  319. 

54  I).  126 7  Gratt.  (Va.)  112. 

16  D.  741  • 5  Rand.  (Va.)  195. 

57  R.  424 88  Mo.  418. 

38  D.  628 3  Hill  (N.  Y.),  215. 

63  D.  665 40  Me.  348. 

138.  39  St.  577 53  Minn.  88. 

14  R.  60  61  111.  343. 

139.  81  D.  374 19  Ind.  28. 

72  D.  639 29  Pa.  St.  387. 

32  R.  562 7  Baxt.  (Tenn.)  312. 

140.  90  D.  49 25  Md.  378. 

12  St.  698 40  Minn.  103. 

87  D.  644 10  Allen  (Mass.),  368. 

48  St.  132 107  Cal.  317. 

8  St.  624 70  Texas,  602. 

141.  16  St.  813 119  N.  Y.  226. 

50  D.  68 21  Vt.  9. 

60  D.  698 15  Ga.  349. 

28  R.  45 68  Me.  235. 

142.  8  D.  369 17  Johnson  (N.  Y.),  92. 

143.  17  D.  238 5  Greenleaf  (Me.),  319. 

144.  32  D.  518 19  Wend.  (N.  Y.),  500. 

72  D.  442 17  N.  Y.  173. 

145.  88  D.  503 49  Pa.  St.  322. 

147.  84  D.  431 44  Pa.  St.  210. 

59  D.  566 1  Jones  (N.  C),  1. 

48  R.  462 39  Ohio  St.  377. 

19  D.  679  .  . 1  Bailey  (S.  C.),  283. 

49  R.  684 64  Cal.  29. 

30  R.  395 48  Iowa,  264. 

31  R,  385 56  Miss.  766. 

52  D.  561 11  B.  Mon.  (Ky.)  74. 

46  R,  476 135  Mass.  386. 

41  D.  370 24  Me.  18. 

100  D.  752 3  W.  Va.  393. 

148.  70  D.  638 9  Cal.  81 

76  D.  174 32  Vt  232. 

77  D.  468 9  Mich.  9. 

40  D.  310 5  Hill  (N.  Y.)  37. 

17  D.  782 1  Mart.  &  Y.  (Tenn.),  48. 

150.  14  D.  614 11  Serg.  &  R.  (Pa.)  73. 

52  D.  777 6  Cush.  (Mass.)  148. 

27  D.  578 6  Vt.  507. 

35  D.  131 5  Blackf.  (Ind.)  441. 


§§  150-194 


REFERENCE   TABLE. 


xlv 


§  150 

12  D.  70  . 

.     1  Del.  Ch.  (Del.)  35. 

151. 

35  St.  706    . 

.     113  Mo.  308. 

152. 

27  D. 682     . 
50  D.  766     . 
27  R.  524     . 

.     10  Conn.  384. 

.    4Cusli.  (Mass.)  273. 

.     31  Oliio  St.  529. 

154. 

12  D.  550 
62  I).  372     . 
69  D.  184     . 

.     Walker  (Miss.),  176. 
.     24  Pa.  St.  159. 
.     1\  Mil.  128. 

166. 

87  1).  52  .    . 
27  St.  106    . 

.     24  Ark.  161. 
.    92  Cal.  296. 

167. 

15  St.  460     . 

16  St.  813 
20  1).  360     . 
79  D. 236      . 
35  D.  326 
95  D.  350 

79  I).  123     . 

.     117  N.  Y.  1. 

.    119  N.  Y.  226. 

.    2  Bland  (Md.),  209. 

.     30  Conn.  149. 

.     24  Pick.  (Mass.)  359. 

.     37  Ga.  532. 

.     17  Cal.  199. 

170. 

54  D.  630     . 
79  D.  440 
21  D.  89  .     . 
25  D. 745     . 
36  D.  458 
32  D. 114 
43  D.  180 
74  D.  703 

\    83  Me.  414. 
.     16  Ind.  429. 
.    4  Wend.  (N.  Y.)  9. 
.    6  Ohio,  125. 
.    3  Ark.  409. 
.     12  La.  98. 
.     10  Rob.  (La.)  202. 
.     7  Mich.  161. 

181. 

95  D.  350 
97  D. 248 
1  R.  399 
35  D.  326 
92  D. 468 

96  D.  73  . 

.     37  Ga.  532. 
.    .    41  Mo.  63. 

.     62  Pa.  St.  286. 
.    .    24  Pick.  (Mass.)  359. 
.     .    2  Bush  (Ky.),5. 
.     .     25  Iowa,  520. 

182. 

70  D.  151 
7  D.  106  . 

.     .     29  Pa.  St.  _'7. 
.     .     13  Mass.  1. 

183. 

37  D.  761 
40  D.  705 
55  D.  494 

.     4  Ark.  44. 
.     .     15  Vt.  745. 
.     .     16  Pa.  St.  241. 

184 

28  1).  280     . 

.    .    3  Leigh  (Va),  365. 

186. 

19  St.  364 
62  I).  742 

.    20  Nevada,  269. 
.    .    26  Ala.  493. 

187. 

49  D.  697     . 

.    9  Ilnmph.  (Tenn.),  43. 

188 

43  D.  373 

.     9  Met.  (Mass.)  93. 

190. 

26  1 ).  536 
2R.  81 
68  D.  658 

.    .    10  Wend.  (N.  Y.)  76. 

.     .     19  Mich.  186. 
.     10  Ind.  28. 

194. 

63  D.  661 
96  D.  345 
65  D.  679 
36  D.  364 
4  R.  29    . 

.    .    40  Me.  247. 

.    .     5  Bush  (Ky.),  160. 
.    .    17111.460. 
.    .    12  Vt,  848 
.    .    36  Conn.  39. 

xlvi  REFERENCE   TABLE.  §§  194-205 

§  194.    37  D.  187 7  Mo.  241. 

195.  46- St.  439 124  Mo.  178. 

16  D.  212 5  Mart.  N.  S.  (La.)  569. 

196.  17  D.  179 0  -Mart.  N.  S.  (La.)  69. 

55  D.  87 23  Miss.  107. 

197.  28  1).  132 8  La.  130. 

12  D.  475 5  Martin  (La.),  83. 

14  D.  201 2  Mart.  N.  S.  (La.)  574. 

65  D.  109 14  Texas,  179. 

43  R.  669 91  N.  Y.  315. 

90  D.  390 37  Mo.  350. 

28  D.  142 8  La.  554. 

35  D.  472 11  N.  H.  88. 

198.  33  D.  147 Meigs  (Tenn.),  342. 

22  D.  41  5  J.  J.  Marsh  (Ky.),  460. 

67  D.  89  13  N.  Y.  587. 

12  D.  468 5  Martin  (La.),  23. 

199.  8  D.  131 16  Mass.  157. 

23  D.  549 9  Greenleaf  (Me.),  140. 

77  D.  598 30  Mo.  72. 

•       21  D.  743 2  Blackf.  (Ind.)  407. 

18  R.  509 113  Mass.  458. 

60  St.  936 69  Vt.  403. 

39  St.  196 148  III.  536. 

38  St.  536 52  Minn.  174. 

46  St.  439 124  Mo.  178. 

200.  30  D.  472 8  Vt.  325. 

13  1).  281 8  Martin  (La.),  95. 

99  1).  003 6  Bush  (Ky.),  133. 

37  St.  186 146  111.  523. 

28  R.  241 125  Mass.  374. 

47  St.  456 163  Mass.  326. 

10  St.  690 87  Tenn.  415. 

201.  37  R.  583 82  N.  Y.  443. 

46  St.  439 124  Mo.  178. 

203.     32  1).  307 2  How.  (Miss.)  837. 

48  1).  706 9  Smedes  &  M.  (Miss.)  247. 

61  1).  617 28  N.  II.  379 

66  1).  502 7  Gray  (Mass.),  473. 

89  D.  643 18  La.  Ann.  10. 

205.     79  D.  236 30  Conn.  149. 

25  R.  513 6  Oregon,  231. 

16  D.  516 15  Serg.  &  R.  (Penn.)  72. 

17  I).  635  .• 17  Serg.  &  R.  (Penn.)  64. 

10  D.  121 4  Conn.  209. 

76  1).  521 16Cal.  332. 

98  1>.  237 57  Pa.  St.  433. 

68  1).  587 19  111.226. 

80  D.  718 13  Wis.  37. 


§§  205-222  KEFERENCE   TABLE.                                   xlvil 

§  205.     87  D.  240 37  111.  82. 

206.  16  D.  715 2  Aiken  (Vt),  284. 

111).  79 2  Greenleaf  (Me.),  275. 

5  D.  291 7  Johnson  (X.  Y.),  477. 

23  D.  478 4  La.  188. 

96  D.  613 30  Md.  500. 

66  D.  148 17  B.  Mon.  (Ky.)  173. 

207.  90  D.  311 40  Miss.  29. 

88  D.  622 37  Vt.  599. 

91  D.  245 13  Rich.  (S.  C.)  498. 

14  1).  722 1  Peck  (Tenn.),  1. 

92  D.  56 37  Ga.  124. 

79  D.  490 17  Ind.  572. 

6  D.  531 1  Car.  L.  R.  (N.  C.)  55. 

12  R.  507 22Gratt.  (Va.)  266. 

45  D.  246- 2  Doug.  (Mich.)  1'J7. 

208.  7  St.  674 65  Miss.  542. 

9D.  608 3  Murph.  (N.  C.)  327. 

45  R.  531 6  Colorado,  559. 

39  R.  558 14  Vroom  (N.  J.),  203. 

37  St.  572 140  N.  Y.  484. 

64  St.  376 110  Mich.  076. 

34  D.  492 8  Watts  (Pa.),  517. 

25  R.  760 3  Colorado,  332. 

209.  58  D.  66 2  Swan  (Tenn.),  405. 

33  D.  317 12  Gill  &  J.  (Md.)  399 

45  St.  700 94  Tenn.  123. 

211.  89  D.  658 18  La.  Ann.  497. 

49  R.  200 15  Texas  App.  304. 

16  1).  738 5  Rand.  (Va.)  120. 

11  D.  779 2  Hawks  (N.  C.J,  441. 

32  D.  143 15  Me.  147. 

212.  56  D.  318 2  Cal.  99. 

216.  39  1).  611 23  Me.  90. 

218.  10  St.  819 84  Va.  116. 

219.  30  D.  578 6  Port.  (Ala.)  123. 

55  I).  163 22  N.  H.  387. 

10  R.  407 49  X.  Y.  4G4. 

220.  27  D.  628 1  Port.  (Ala.)  313. 

58  D.  575 14  111.  304. 

222.  35  D.  268 17  Me.  462. 

79  D.  656 17  Md.  331. 

93  I).  155 98  Mass.  216 

93  D.  184 15  Mich.  206. 

83  D.  656 7  Allen  (Mass.),  29. 

88  D.  761 40  Ala.  184. 

18  R.  200 63  Me.  105. 

25  D.  303 14  Pick.  (Mass.)  141. 

45  1).  199 11  Met.  (Mass.)  186. 


xlviii  REFERENCE   TABLE.  §§  222-268 

§  222.  51  D.  20G 19  N.  H.  534. 

228.  47  D.  254 4  Denio  (N.  Y.),  811. 

2  St.  305 97  N.  C.  477. 

37  St.  552 140  N.  Y.  267. 

240.  97  D.  248 41  Mo.  63. 

241.  15  R.  563 75  Pa.  St.  39. 

72  D.  74 2  Minn.  61. 

243.  74  D.  749 3  Minn.  240. 

244.  34  D.  81 3  How.  (Miss.)  240. 

245.  3  St.  895 19  Nevada,  391. 

247.  19  R.  765 37  Wis.  379. 

35  D.  44 1  Ala.  612. 

60  D.  581 4  Cal.  46. 

248.  35  D.  326 24  Pick.  (Mass.)  359. 

1  R.  399 62  Pa.  St.  286. 

"  59  D.  759 21  Pa.  St.  147. 

250.  70  D.  151 29  Pa.  St.  27. 

92  D.  468 2  Bush  (Ky.),  5. 

252.  49  D.  697 9  Humph.  (Tenn.)  43. 

253.  44  D.  593 4  Harr.  (Del.)  389. 

54  D.  379  .  .  .-  .  .  .  .  10  Ga.  190. 

19  St.  374 20  Nevada,  427. 

31  D.  72 9  Gill  &  J.  (Md.)  365. 

87  D.  52 24  Ark.  161. 

97  D.  575 48  N.  H.  57. 

20  St.  123 77  Wis.  28. 

15  St.  460 117  N.  Y.  1. 

41  St.  109 58  Ark.  407. 

41  St.  278 149  111.  361. 

63  D.  487 2  Iowa,  165. 

12  St.  183 24  Fla.  55. 

257.  81  D.  530 4  Met.  (Ky.)  33. 

264.  46  St.  98 101  Ala.  51. 

265.  58  D.  571 14  111.  297. 

88  D.  377 33  N.  Y.  269. 

8  R.  602 23  La.  An.  743. 

85  D.  348 35  111.  121. 

51  D.  611 12  Pa.  St.  350. 

20  R.  69 41  Md.  446. 

66  D.  673 23  Mo.  353. 

89  D.  93 30  Cal.  253. 

13  R.  640 5  W.  Va.  85. 

47  St.  801 116  N.  C.  223. 

25  St.  230 91  Cal.  649. 

266.  64  St.  64 173  111.  19. 

267.  46  St.  98 101  Ala.  51. 

268.  45  St.  700 94  Tenn.  123. 

12  I).  257 1  Blackf.  (Ind.)  405. 

15  D.  462 5  Cowen  (N.  Y.),  165. 


§§  268-277 


REFERENCE   TABLE. 


xlix 


§268. 

56  D.  331. 
28  1).  525 

.  .  2  Cal.  243. 

.  .  14  Wend.  (N.  Y.)  250" 

269. 

23  D.  537 
20  D.  360 

.  .  9  Greenlf.  (Me.)  54. 
.  .  2  Bland  (Md.),  209. 

270. 

69  D.  642 

21  St.  772 

.  .  10  N.  Y.  58. 
.  47  Ohio  St.  90. 

271. 

26  1).  631 

.  10  Pick  (Mass.)  87. 

272. 

33  D.  320 
76  1).  736 
28  St.  333 

.  9  Port.  (Ala.)  390. 
.  .  24  111.  105 
.  .  47  Minn.  115. 

274. 

1  E.  215  . 

.  .  27  Iowa,  28. 

275. 

31  D.  313 
87  I).  52  . 
27  St.  106 
31  St.  284 
36  St.  668 
20  D.  360 
97  D.  575 
48  D. 178 
74  I).  572 
79  1).  236 
16  St.  460 
48  D. 248 
35  1).  326 

.  18  Wend.  (N.  Y.)  9. 
.  .  24  Ark.  161. 

.  92  Cal.  296. 
.  .  17  Color.  156. 

.  139  N.  Y.  32. 
.  .  2  Bland  (Md.),  209. 

.  48  N.  H.  57. 

.  2  Fla.  102. 

.  15  Md.  376. 

.  30  Conn.  149. 

,  117  X.Y.I. 

.  5  Ga.  194. 

.  24  Pick.  (Mass.)  359. 

276. 

33  1).  346 

36  D.  543 
55  D.  499 
75  I).  GIG 
24  1).  517 
82  D.  583 
98  I).  237 
47  D. 480 
59  1).  506 
61  1).  508 

17  It.  425  . 

29  U.  407 

37  K.  0  . 
45  St.  650 
72  D.  664  . 
66  D.  728  . 
37  St.  206  . 
58  1).  786 

30  1).  430 
40  1).  274 
40  St.  17  . 

.  1  Ark.  57D. 

.  3  Scam.  (111.)  238. 

.  16  Pa.  St.  256. 

.  33  Pa.  St.  495. 

.  2  Yerger  (Tenn.),  599. 

.  43  Pa.  St.  512. 

.  57  Pa.  St.  433. 

.  6  Pa.  St.  507. 

.  8  N.  Y.  483. 

.  27  Miss.  2C9. 

.  48  Cal.  279. 

.  14  Bush  (Ky.),  218. 

.  35  Ark.  69. 

.  166  Pa.  St.  72. 

.  30  Pa.  St.  9. 

.  2  Md.  429. 

.  147  Iil.  66. 

.  37  Me.  165. 

.  Ki  Yerger  (Tenn.),  59 

.  4  Hill  (N.  Y.),  140. 

.  101  Cal.  16. 

277. 

11  st.  109  . 
46  St.  316  . 
36  I).  Ill 
97  D.  82  . 

68  Ark  Hi7. 
.  155  III.  98. 

8  Ala.  137. 
.  100  Mass.  136 

REFERENCE   TABLE.  §§  277-297 


§  277.    4  St.  182 84  Ky.  1. 

10  St.  266 81  Me.  450. 

38  D.  317 12  Gill  &  J.  (Md.)  399. 

25  li.  613 6  Oregon,  231. 

91  D.  262 14  Rich  (S.  C),  129. 

278.     13  D.  484 1  Mo.  164. 

44  D.  593 4  Harr.  (Del.)  389. 

54  D.  379 10  Ga.  190. 

26  D.  631 16  Pick.  (Mass.)  87. 

4  St.  147 83  Ky.  198. 

36  I).  543 3  Scam.  (111.)  238. 

62  D.  424 1  Sneed  (Tenn.),  637. 

280.  15  D.  156 3  Mart.  N.  S.  (La.)  236. 

14  D.  206 3  Greenlf.  (Me.),  22. 

1  D.  488 2  Wash.  (Va.)  282. 

79  D.  490 17  Ind.  572. 

82  D.  163 43  N.  H.  415. 

58  I).  100 8  Texas,  62. 

34  D.  492 8  Watts  (Pa.),  517. 

70  D.  302 18  Texas,  682. 

25  R.  760 3  Color.  332. 

281.  23  D.  478 4  La.  188. 

39  D.  601 23  Me.  60. 

56  D.  688 35  Me.  73. 

12  D.  479 5  Mart.  (La.)  459. 

36  D.  185 10  Watts  (Pa.),  351. 

94  D.  214 5  Cold.  (Tenn.)  1. 

36  D.  228 6  Whart.  (Pa.)  294. 

283.    69  D  450 25  Mo.  94. 

285.  27  D.  628 1  Port.  (Ala.)  313. 

73  D.  565 13  Cal.  24. 

62  D.  424 1  Sneed  (Tenn.),  637. 

286.  37  D.  761 4  Ark.  44. 

287.  28  D.  70 3  Dana  (Ky.),  247. 

293.  55  D.  376 6N.Y.  9. 

294.  58  D.  272 22  Ala.  621. 

63  D.  139 5  Cal.  418. 

71  D.  559 45  Me.  507. 

74  D.  522 14  Md.  184. 

94  D.  115 8R.  I.  415. 

296.  30  D.  723 18  Me.  308. 

2  St.  373 108  N.  Y.  137. 

58  D.  389 3  Cal.  115. 

15  D.  464 5  Cowen  (N.  Y.),  188. 

297.  SOD.  574 6  Port.  (Ala.)  109. 

41  St.  304 149  111.  486. 

23  D.  471 4  La.  51. 

46  D.  100 1  Texas,  250. 

15  D.  633 3McCord  (S.  C),  298. 


§§  298-306 


REFERENCE  TABLE. 


li 


§  298.  38  T>.  317 
51  D.  746 
10  St.  48  . 

41  St.  630 
3  D.  265  . 
22  D.  203 
34  D. 116 
62  D.  714 

15  D.  156 

299.  8  St.  643  . 
32  St.  656 

42  St.  627 
84  I).  582 

46  D.  447 
26  D.  379 

19  D.  722 

300.  58  D.  589 
12  St.  819 
54  D.  639 
69  D.  181 
25  D.  677 

43  St.  127 

301.  48  St.  800 
10  D.  100 
74  D.  522 
10  St.  23 
97  D.  425 

87  D.  240 

88  D.  622 

302.  21  D.  608 
51  D.  142 

305.  35  D.  54  . 
24  D.  517 

20  R.  50  . 
84  D. 114 

10  St.  143 
31  St.  350 
86  I).  848 

16  St.  224 
82  T>.  448 
48  1).  349 

306.  86  D.  643 
24  St.  866 
76  P.  6fi2 

47  D.  242 

11  St.  808 
3  St.  106 
14  St   L38 
72  I).  819 


12  Gill  &  J.  (Md.)  399. 
5  Texas,  23. 

117  Ind.  356. 
119  Mo.  41. 

3  Day  (Conn.),  166. 
7  Grecnlf.  (Me.)  370. 

4  How.  (Miss.)  163. 
20  Ala.  145. 

3  Mart.  N.  S.  (La.)  236. 

38  Minn.  85. 
109  Mo.  78. 
30  Neb.  843. 

26  Texas,  475. 

4  Oilman  (111.),  221. 
1  Port.  (Ala.)  265. 

1  Leigh  (Va.),  42. 
15  111.  20. 

115  N.  Y.  506. 
33  Me.  558. 
11  Md.  81. 
4  Dev.  (N.  C.)  1. 

104  Cal.  524. 
67  Vt.  76. 

4  Conn.  60. 
14  Md.  184. 

117  Ind.  71. 
42  Miss.  1. 
37  111.  82. 
37  Vt.  599. 

2  Leigh  (Va.),200. 

13  Smedes  &  M.  (Miss.)  93. 
2  Ark.  229. 

2  Yerger  (Tenn.),  599. 

39  Wis.  390. 
45  N.  H.  52. 

118  Ind.  350. 

17  Colorado,  596. 

27  Texas,  491. 
13  Colorado,  525. 
13  Ohio  St.  446. 

1  Ind.  21. 

27  Texas,  491. 

105  Mo.  85. 
30  Ga.  440. 

4  Denio  (N.  Y.),  118. 
17  Oregon,  204. 
82  Va.  359. 
82  Ga.  23. 
37  N.  II.  9. 


In  REFERENCE   TABL7J.  §§  306-311 

§  306.  42  St.  121 103  Cal.  387 

307.  54  1).  030 33  Me.  414. 

79  D.  440 16  Ind.  429. 

36  .St.  750 1  So.  Dakota,  483. 

12  D.  568 Walker  (Miss.),  298. 

15  D.  632 3  McCord  (S.  C),  280. 

15  D.  39 5  Littell  (Ky.),  22. 

53  St.  165 112  Cal.  101. 

308.  7  R.  147 31  Iowa,  397. 

20  R.  695 65  Me.  251. 

47  D.  377 16  Ohio,  373. 

2  R.  581 40  Ga.  356. 

23  R.  412 11  R.  I.  86. 

83  D.  446 2  Kansas,  70. 

94  D.  742 34  Cal.  391. 

309.  41  St.  634 119  Mo.  94. 

12  D.  350 2  Marsh.  A.  K.  (Ky.)  10. 

70  D.  100 8  Ohio  St.  201. 

73  D.  565 13  Cal.  24. 

80  D.  189 43  N.  H.  50& 

1  St.  191 22  Fla.  250. 

6  St.  587 100  N.  C.  294. 

49  D.  509 8  Pa.  St.  240. 

90  D.  671 32  N.  J.  Law,  403. 

08  D.  404 5  Cold.  (Term.)  326. 

56  R.  360  .  .v 67  Iowa,  619. 

50  St.  568 45  Nebraska,  741. 

310.  47  D.  365 16  Ohio,  111. 

311.  39  St.  156  .......  148111.76. 

15  St.  138 128  111.  510. 

33  D.  350 4  N  Y  71 

60  D.  426 2  Wis.421. 

62  D.  546 13  Texas,  68. 

41  D.  675 15  N.  H.  9. 

26  Rt-  91 46  Kansas,  231. 

37  St.  228 147  111.  496. 

26  D.  131 4  Rawle  (Pa),  27a 

77  I>.  651 38  Miss.  476. 

81  !>•  626 19  Md.  72. 

15  D.  78 1  Mon.  (Ky.)  16. 

83  D  350 21  Ind.  334. 

92D-410 23  Iowa,  81. 

22  St.  611 126  Ind.  507. 

23  St.  05 20  Oregon,  96. 

3  St.  616  ........  H3  Ind.  10. 

6  D.  88 9  Mass.  462. 

79  D.  244 30  Conn.  190. 

15  R-  660 48  Ga.  50. 

44  B.  562 17  Conn.  500. 


§§  311-337 


REFERENCE    TABLE. 


liii 


311. 

55  D.  494 

73  D.  683 

1  D.  316 . 

312. 

31  D.  760 

313. 

48  D. 104 

54  1).  217 

315. 

81  I).  620 

325. 

10  D.  606 

4.J  I).  53  . 

24  St.  678 

326. 

69  D.  728 

53  H.  342 

23  D.  417 

55  I).  137 

65  St  476 

45  D.  621 

35  1).  690 

95  ] ).  572 

63  St.  241 

64  St.  745 

22  D.  279 

50  D.  593 

68  I).  73 

90  D.  287 

66  St.  267 

19  D.  595 

5:;  St.  437 

54  St.  216 

67  1).  106 

20  D.  158 

32  D.  689 

50  D.  445 

327. 

51  I).  584 

26  St.  523 

328 

5  St.  494 

19  K.  310 

31  1).  238 

329 

83  1).  249 

1  I).  121 

07  I).  51 

330 

18  1).  684 

333. 

:;:;  I).  227 

58  I).  488 

90  I).  122 

335. 

35  D.  472 

336. 

54  I).  515 

337. 

18  D.  110 

30  R.  746 

47  K.  458 

16  Pa.  St.  241. 

28  Conn.  433. 

1  Yeates  (Pa.),  533. 
12  Conn.  491. 

2  Fla.  207. 

11  Ark.  519. 
19  .Mil.  72. 

1  McCord  Eq.  (S.  C.)  304. 

2  Gilma'n  (111.),  327. 
«7  Va.  706. 

3  Jones  Eq.  (X.  C.)  177. 

12  Oregon,  221. 

7  Marsh.  J.  J.  (Ky.)  448. 
15  Mo.  160. 

101  Iowa.  423. 
3  Pa.  St.  21. 

8  Paige  (X.  Y.).  309. 
49  111.  53. 

171  111.  402. 
'.14  Va    557. 

3  Bland    Mil.),  392. 

29  Me.  361. 
5  Wis.  551. 
12  Minn.  145. 
174  111.  :)44. 

4  Ohio,  175. 
97  Ky.  757. 

01  Ark.  354. 
14  X.  Y.  9. 

;;  Marsli.  J.  J.  (Ky.)  492. 

2  Dev.  ,<:  B.  Eq.  (X.  C.)  31. 

11  111.  157. 

12  Pa.  St.  50. 
129  X.  Y.  274. 
123  111.  111. 
114  Mass.  69. 

3  Green  Ch.  (X.  J.)  16. 
32  111.  45. 

1  Johns.  Cas.  (N.  Y.)  436. 
99  Mass.  634. 

I  Vt.  367. 

9  Leigh  (Va.),  119. 
1?,  <ia.  1. 

12. Mien  (Mass.),  1. 

II  X  II.  m. 

12  I!.  Mon.  (Ky.)  191. 
7  Conn.  307. 
45  Wis.  834. 
107  111.  517. 


IlV  REFERENCE   TABLE.  §§  337-383 

§  337.     52  St.  116    .......  110  Cal.  579. 

14  D.  642 11  Serg.  &  R.  (Pa.)  422. 

48  D.  742 10  Smedes&M.  (Miss.)  159. 

60  D.  335 10  Gratt.  (Va.)  358. 

24  St.  399 105  Mo.  472. 

338.     73  D.  555 12  Cal.  433. 

340.     12  D.  508 7  Martin  (La.),  318. 

62  D.  214     . 3  Ohio  St.  105. 

342.  13  D.  564 1  Cowen  (N.  Y.),  543. 

95  D.  722 24  Iowa,  192. 

13  R.  270 23  Ohio  St.  565. 

343.  26  D.  507 7  La.  440. 

32  D.  54 6  Dana  (Ky.),  17. 

74  D.  463 46  Me.  400. 

16  St.  292 129  111.  582. 

344.  2  D.  634 Conf.  (N.  C.)  115. 

59  D.  431 7  N.  Y.  555. 

345.  75  D.  714 12  Rich.  (S.  C),  13. 

99  D.  556 51  111.  382. 

2D.  61 1  Day  (Conn.),  142. 

16  D.  199 5  Martin,  N.  S.  (La.)  464. 

48  D.  590 1  Cusli.  (Mass.)  29. 

350.     42D.51. 7  Hill  (N.  Y.),  95. 

92  D.  159 44  111.  142. 

358.     85  D.  316 34  111.  422. 

57  D.  65 9  Cush.  (Mass.)  497. 

67  D.  89 13  N.  Y.  587. 

367.     38  D.  644 3  HM1  (N.  Y.),  399. 

369.     26  D.  232     .    .    .    .    .    .    .  4  Yerger  (Tenn.),  270. 

371.     15  D.  242 3  Cowen  (N.  Y.),  75. 

373.     85  D.  327 34  111.  476. 

83  D.  712 7  Allen  (Mass.),  548. 

379.     55  St.  488 73  Miss.  110. 

10  D.  232 19  Johnson  (N.  Y.),  345. 

9D.  736 3  Haywood  (Tenn.),  147. 

38  D.  124 4  Scam.  (111.)  117. 

23  D.  36 2  Pen.  &  W.  (Pa.)  439. 

74  D.  169 22  111.  610. 

381.  58  D.  740 36  Me.  176. 

382.  7  R.  536 105  Mass.  391. 

53  R.  22 33  Minn.  175. 

8D.  658 3  Serg.  &  R.  (Pa.)  490. 

58  D.  740 36  Me.  176. 

92  D.  248 46  111.  230. 

383.  7D.240 2  Conn.  69. 

21  D.  492 1  Bailey  (S.C.),  611. 

32  R.  86 ,     .     .  65  Ind.  582. 

46  R.  406 75  Me.  387. 

26  D.  232 4Yerger  (Tenn.),  270. 


§§  383-385  REFERENCE  TABLE.  lv 

§383.     52  D.  156 2  Pinney  (Wis.),  243. 

59  R.  326 35  Minn.  294. 

50  D.  249 19  Conn.  370. 

12  D.  287 Litt.  Sel.  Cas.  (Ky.)  153. 

49  D.  G08 2  Strob.  (S.  C.)  608. 

384.  50  R.  290 137  Mass.  231. 

5D.  727 2  Martin  (La.),  138. 

385.  5  R.  540 41  Ga.  449. 


LIST    OF    TREATISES    CITED. 


Amos. 

Austin. 

Best. 

Black. 

I'.l.  Comm. 

Broom's     Legal 

Maxims. 
Burlamaqui. 
( Sicero. 
Clark. 

( looley  C.  Law. 
( looley  Const.  Lim. 
Dillon. 

Holland. 
Jameson. 
Kent. 
Lorimer. 
Maine    Ancient 

Law. 
Mai  no  Early  Hist. 

Inst. 
Maine    Early    Law 

and  Custom. 
Markby. 
Morey. 
Morgan    Legal 

Maxims. 
Pollock. 

Pollock    and  Mait- 

land. 
Ram  Leg.  J. 
Reeve. 

Story  Conf.  L. 
Summa    Ph.    Zig- 

liara. 
Summa    S.     Th. 

Aquin. 
Taylor  Med.  Jur. 
Vattel. 
Wambaugh. 
Walker.  ' 
Wash.  R.  P. 
Whart.  I.  L.  Dig. 
Williams  R.  P. 
Wilson. 

Woolsev. 


Science  of  Law. 
Jurisprudence. 
Presumptions. 
Interpretation  of  Laws. 
Blackstone's  Commentaries. 
Ibid. 

Natural  and  Political  Law. 
The  Laws. 

Practical  Jurisprudence. 
Constitutional  Law. 
Constitutional  Limitations. 
Laws  and  Jurisprudence   of 

England  and  America. 
Jurisprudence. 
(  onstitutional  Convention. 
( 'ommentaries. 
Institutes  of  Law. 
Ibid. 

Early  History  of  Institutions. 

Ibid. 

Elements  of  Law. 
Outlines  of  Roman  Law. 
Ibid. 

Essays  in  Jurisprudence  and 

Ethics. 
History  of  English  Law. 

Science  of  Legal  Judgment. 
History  of  English  Law. 
Conflict  of  Laws. 
Zigliara's      Summa       Philo- 

Bophica. 
S.  Thomas  Aquinas'  Summa 

Theologica. 
Medical  Jurisprudence! 
Law  of  Nations. 
Study  of  Cases. 
American  Law. 
Washburn's  Real  Property. 
International  Law  I  tjgest. 
Williams'  Real  Property. 
James      Wilson's       Works. 

2  vols. 
International  Law. 


New  York,  1874. 

London,  1885. 

Pliila.,  186!). 

St.  Paul,  1890. 

Anv  edition,  side-paging. 

Phila.,  1882. 

I'ln'Ia..  1832. 
Bonn  Classical  Library. 
Cambridge,  1883. 
Boston,  18'J8. 
Boston,  1883. 
Boston,  4th  ed.,  1890. 

London  and  New  York,  1896. 
Chicago,  4th  ed.,  1887. 
Any  edition,  side-paging. 
Edinburgh,  1872. 
New  York,  1875. 

New  York,  1875. 

London,  1883. 

London,  1890  (4th  ed.). 
New  York,  1884. 
Cincinnati,  1878. 

London,  1882. 

Boston,  1899 

Phila.,  1871. 

Finlason's  ed.,  Phila.,  1880. 

Lost,  in,  1872. 

Any  edition. 

Any  edition. 

Anv  edition. 
Phila..  1855. 
Boston,  1894. 
Boston,  1882. 
Boston,  .".Hi  ed.,  1887. 
Washington,  1887. 
Phila.,  1894. 
Chicago,  L896. 

New  York,  1891. 


lviii 


LIST   OF  REPORTS   CITED. 


LIST    OF    REPORTS    CITED. 


CITATION. 

REPORT. 

REMARKS. 

Dall. 

Dallas. 

U.  S.  Supreme  Court. 

Cranch. 

Cranch. 

Wheat. 

Wheaton. 

Pet. 

Peters. 

How. 

Howard. 

Black. 

Black. 

Wall. 

Wallace. 

U.S. 

United  States. 

D. 

American  Decisions. 

Select  Cases  from  State  Reports. 

R. 

American  Reports. 

St. 

American  State  Reports. 

(i               «               K               a 

ELEMENTS 


OF 


AMERICAN     JURISPRUDENCE. 


CHAPTER   I. 

OF  THE  NATURE  AND  AUTHORITY  OF  LAW. 

§  1.    Of  the  Essential  Nature  of  Law. 

Law,  in  its  widest  sense,  is  a  rule  imposed  by  one  being 
upon  itself  or  upon  some  other  being.  It  is  a  rule  (regula, 
from  rer/o,  to  govern) ;  a  norm  or  standard  of  being  or  conduct 
determining  the  nature  and  attributes  of  a  thing  or  regulating 
its  actions  or  forbearances.  It  is  imposed  by  a  being  possess- 
ing and  exercising  authority  over  itself  or  other  beings,  and 
enforcing  obedience  to  the  rule  either  by  making  its  observ- 
ance inevitable,  or  by  attaching  to  its  violation  certain  pen- 
alties. It  is  directed  either  to  the  being  from  whom  it 
emanates,  as  where  a  man  makes  rules  for  his  own  guidance, 
or  a  State  adopts  a  constitution,  or  the  Creator  establishes 
laws  governing  his  intercourse  with  his  creatures;  or  it  is 
ordained  for  other  beings,  as  where  the  Almighty  gives  ex- 
istence and  specific  characteristics  to  a  creature,  or  an  artisan 
fixes  the  modus  operandi  of  a  machine,  or  a  sovereign  pro- 
scribes laws  for  the  government  of  his  subjects.  It  origi- 
nates in  the  reason  of  the  lawgiver,  which  perceives  the 
relations  between  causes  and  effects  and  the  consequences 
which  must  flow  from  different  forma  of  being  or  different 
modes  of  action,  and  selects  the  forms  and  modes  adapted  to 

i 


2  AMERICAN   JURISPRUDENCE.  §§  2,  3 

the  purposes  to  be  accomplished  by  the  observance  of  the  law. 
Cumlex sit qucedam  regulaet  .  .  .  actuum  mensura  Jiecessarib 
ad  ipsam  rationem  spectat. 

Head  1  Bl.  0>m.,  p.  38  ;  Holland,  Ch.  ii ;  Summa  S.  Th.  Aquin., 
Pr.  Sec,  Quest,  xc;  Summa  Ph.  Zigliara,  M.  22  ; 
Cicero,  The  Laws,  Book  i,  §  iv. 


§  2.    Of  the  Eternal  Law. 

Behind  all  other  beings  lies  the  Supreme,  Self-Existent 
Being,  —  the  Great  First  Cause  from  whom  all  secondary 
causes  and  effects  proceed.  His  reason  conceives,  and  his  will 
summons  into  actual  existence,  the  natures  and  attributes  of 
all  things  with  their  relations  to  and  their  operation  upon  one 
another,  and  thus  imposes  upon  them  a  law  which  determines, 
even  to  its  minutest  detail,  the  evolution  and  development  of 
the  entire  Universe  from  its  beginning  to  its  end,  except 
within  that  narrow  field  of  action  whose  government  He  has 
committed  to  the  reason  and  will  of  His  intelligent  creatures. 
The  law  by  which  He  thus  rules  the  Universe  is  the  Eternal 
Law,  —  infallible,  irresistible,  unchangeable  save  by  Him- 
self, —  manifesting  itself  everywhere  outside  the  voluntary 
acts  of  rational  beings,  and  exercising  upon  these  a  powerful 
influence  through  the  qualities  with  which  it  has  endowed 
them  and  the  conditions  by  which  it  surrounds  them.  All 
knowledge  is  the  knowledge  of  this  law,  and  knowledge  of 
this  law  is  knowledge  of  the  Lawgiver  Himself;  of  the  Abso- 
lute, the  Infinite,  the  Unconditioned;  of  the  Ultimate  Beauty, 
Goodness,  and  Truth.  Est  aliqua  lex  ceterna,  ratio  videlicet 
gubernativa  totius  universi  in  mente  divina  existens. 

Read  Cicero,  The  Laws,  Book  i,  §  vii,  Book  ii,  §  iv;  Summa  S. 
Th.  Aquin.,  Pr.  Sec,  Quest,  xci,  Art.  i,  Quest,  xciii; 
Summa  Ph.  Zigliara,  M.  23. 


§  3.    Of  Natural  Law. 

The  manifestation  of  this  eternal  law  through  finite  per- 
sons, objects,  and  events,  especially  through  such  as  are  per- 


§  4  NATURE    AND    AUTHORITY   OF   LAW.  3 

celvable  by  man,  is  often  called  the  Law  of  Nature,  or  the 
Natural  Law.  By  obedience  to  the  eternal  law  all  creatures 
participate  in  the  supreme  reason  from  which  it  originates, 
enjoy  the  advantages  and  achieve  the  ends  which  it  proposes, 
and  work  out,  each  for  itself,  the  destiny  to  which  it  has 
predetermined  them.  The  law  thus  written  in  the  forms  and 
properties  of  matter,  operating  through  the  instincts  and  pro- 
clivities of  sentient  beings,  and  unfolding  itself  incessantly  in 
their  individual  and  collective  history,  is  properly  styled  the 
Law  of  Nature,  —  the  law  which  their  nature  exhibits  and 
which  it  is  their  nature  to  obey.  But  this  law,  b}^  what- 
ever name  it  may  be  called,  is  still  the  same  eternal  law, 
inseparable  in  this  part  of  it  whose  effects  our  minds  can 
apprehend  from  those  parts  which  control  creatures  and  re- 
gions beyond  our  physical  and  intellectual  vision;  the  law 
that  binds  all  beings,  physical  and  spiritual,  into  one  indissol- 
uble Universe  which  is  advancing,  under  the  direction  of  this 
law,  toward  a  goal  which  only  its  creator,  director,  and  law- 
giver can  foresee. 

Read  1  Bl.  Com.,  pp.  39-41;  Holland,  Ch.  iii,  pp.  29-33; 
Summa  S.  Th.  Aquin.,  Pr.  Sec,  Quest,  xci,  Art.  ii, 
Quest,  xciv;  Summa  Ph.  Zigliara,  M.  24. 


§  4.    Of  Positive  Law. 

A  rule  may  be  imposed  by  one  being  upon  another  being 
in  either  of  two  ways:  (1)  By  immediately  and  irresistibly 
controlling  the  nature,  attributes,  or  conduct  of  the  subject- 
being;  (2)  By  commanding  the  subject-being  how  to  act  or  to 
forbear.  The  latter  mode  is  possible  only  when  the  subject- 
being  possesses  reason  and  will,  and  when  its  actions  and  for- 
bearances are  under  its  own  control.  Thus  the  eternal  law 
governs  all  beings,  actions  and  events,  except  the  purely  vol- 
untary acts  of  rational  creatures,  -in  the  first  method,  and 
those  voluntary  acts  in  the  second  method.  To  the  imposi- 
tion of  a  rule  in  the  second  method  it  is  necessary  that  the 
rule  should  be  expressed  and  promulgated;  that  is,  that  it 
should  be  positively  prescribed  and  communicated  by  the  law- 


4  AMERICAN   JURISPRUDENCE.  §  5 

giver  to  the  rational  subject-being  in  a  manner  intelligible  to 
him,  and  so  become  a  recognized  and  practical  guide  of  life 
and  conduct.  This  form  of  law  is  known  as  "Positive  Law," 
and  is  regarded  by  many  writers  as  the  only  form  to  which 
the  name  "  Law  "  can  properly  be  applied. 

Read  Austin,  Lect.  i,  pp.  86-103;  Holland,  Ch.  iv,  pp.  38-40; 
Summa  S.  Th.  Aquin.,  Pr.  Sec,  Quest,  xc,  Art.  iv; 
Suinma  Ph.  Zigliara,  M.  25,  i. 


§  5.    Of  Divine  Law. 

Positive  Law  is  divided,  so  far  as  the  human  race  is  con- 
cerned, into  two  groups  of  rules:  (1)  Divine  Law;  and  (2) 
Human  Law.  These  groups  of  rules  do  not  differ  in  their 
ultimate  origin,  for  both  are  expressions  of  the  eternal  law. 
Nor  do  they  differ  in  their  ultimate  end,  which  is  the  devel- 
opment, elevation,  and  happiness  of  mankind.  Nor  do  they 
rest  upon  a  different  authority,  for  human  law,  truly  so 
called,  is,  like  the  divine,  a  rule  imposed  by  the  supreme 
reason  and  will  of  God.  Their  distinction  resides  in  the 
beings  by  whom  they  are  expressed  and  promulgated  to  men. 
Divine  Law  is  the  rule  prescribed  directly  to  His  rational 
creatures  by  the  Creator  Himself.  It  is  a  communication 
to  them  of  such  otherwise  undiscoverable  or  unintelligible 
portions  of  the  eternal  law  as  may  be  necessary  to  enable 
them  to  govern  their  mental,  moral,  and  physical  operations  in 
accordance  with  the  attributes  of  their  own  natures  and  the 
end  for  which  they  were  created.  That  such  a  communication 
should  be  made  whenever  it  becomes  necessary,  and  so  far  as 
it  is  necessary,  is  inevitable,  since  otherwise  the  supreme 
reason  would  contradict  itself  and  defeat  its  own  designs. 
Whether  and  to  what  extent  such  a  Divine  Law  has  actually 
been  prescribed  is  a  question  for  the  philosopher  and 
theologian. 

Kead  1  Bl.  Com.,  p.  42;  Holland,  Ch.  iii,  p.  36;  Markby, 
§§  104-115;  Summa  S.  Th.  Aquin.,  Pr.  Sec,  Quest 
xci,  Art.  iv ;  Summa  Ph.  Zigliara,  M,  25,  ii-iv. 


§  6        NATURE  AND  AUTHORITY  OF  LAW.         5 

§  6.  Of  Human  Law. 

Human  Law  is  a  rule  prescribed  by  man  for  his  own  gov- 
ernment or  that  of  other  men.  Human  Law,  like  Natural 
Law  and  Divine  Law,  is  also  part  of  the  eternal  law.  For 
since  the  eternal  law  determines  the  nature  and  attributes 
of  man  and  the  general  conditions  by  which  he  is  surrounded, 
as  well  as  the  circumstances  on  which  his  personal  disposi- 
tion, mental  and  moral  strength  or  weakness,  and  by  far  the 
great  majority  of  his  actions  and  forbearances  depend,  the 
held  within  which  his  own  reason  and  will  exercise  dominion 
evidently  must  be  very  narrow,  his  purely  voluntary  acts 
comparatively  few,  and  his  responsibility  for  his  life  and 
conduct,  and  the  practical  rules  which  he  can  make  and  apply 
for  their  direction,  correspondingly  limited.  Hence  it  re- 
sults that  a  very  large  proportion  of  human  laws,  commonly 
so  called,  are  in  reality  mere  spontaneous  recognitions  and 
affirmations  of  the  truths  and  dictates  of  the  eternal  law,  to 
which  man  has  added  nothing  except  the  verbal  garments  in 
which  they  are  clothed.  Furthermore,  within  the  sphere  of 
action  which  is  under  human  control,  and  where  the  intellect 
of  man  is  competent  to  devise  and  his  will  is  free  to  impose 
rules  of  life  and  conduct,  the  laws  which  he  prescribes  can 
be,  and  ought  to  be,  and  generally  are  in  accordance  with  the 
dictates  of  the  supreme  reason  from  which  his  own  proceeds, 
and  consequently  are  a  part  of  the  eternal  law.  For  as  it  is 
apparent  from  the  operations  of  the  eternal  law  in  other 
spheres  of  action  that  every  secondary  cause  is  adequate  to 
the  production  of  its  intended  effect;  that  every  being  is 
qualified  for  the  attainment  of  the  end  for  which  it  was  cre- 
ated; that  every  rational  creature  is  endowed  with  intellect 
and  will  sufficient  to  enable  it  to  direct  its  voluntary  acts  and 
forbearances  along  the  lines  of  its  own  normal  development 
and  happiness;  so  when  the  mind  of  man  applies  itself  to 
the  careful  study  of  matters  within  its  grasp  and  honestly 
endeavors  to  establish  rules  tending  to  promote  his  physical, 
mental  and  moral  welfare,  it  must  inevitably  succeed,  and 
the  new  rules  it  formulates  must  necessarily  conform  to  and 
express   the   dictates  of  the  eternal  law  in  reference  to  the 


6  AMERICAN  JURISPRUDENCE.  §  7 

action  or  forbearance  which  the  rule  commands.  Thus  human 
laws,  properly  so  called,  — the  productions  of  right  reason  and 
an  upright  will, — are  dictated  in  the  last  resort  by  the 
supreme  reason,  are  binding  in  conscience  as  well  as  in  social 
comity,  and  are  sanctioned  not  merely  by  human  authority, 
but  also  by  the  authority  of  God.  (a)  Est  in  hominibus  lex 
qucedam  naturalis,  participatio  videlicet  legis  ceternce,  secundum 
quam  bonum  et  malum  discernunt. 

Read  1  Bl.  Cora.,  p.  43 ;  Cicero,  The  Laws,  Book  i,  §§  viii-xii; 
Lorimer,  Book  i,  Ch.  iii,  vi,  viii,  ix;  Burlaraaqui,  Part 
i,  Ch.  i-viii,  Part  ii,  Ch.  i-xii ;  Morey,  pp.  219-222; 
Summa  S.  Th.  Aquin.,  Pr.  Sec,  Quest,  xci,  Art.  iii, 
Quest,  xcv;  Summa  Ph.  Zigliara,  M.  25,  v-ix. 
(a)  54  D.  21?. 


§  7.    Of  Human  Lawgivers  :   the   State. 

Human  Law,  as  thus  defined,  embraces  all  those  rules, 
whatever  be  their  character  or  scope,  which  man  in  the  exer- 
cise of  right  reason  and  honest  purpose  establishes  for  the 
government  of  himself  or  of  his  fellow  men.  Some  are  pre- 
scribed by  individuals  for  the  direction  of  their  personal  con- 
duct, others  by  families  for  the  promotion  of  their  united 
peace  and  prosperity,  others  by  larger  associations  for  the 
accomplishment  of  the  objects  for  which  they  were  organized. 
These  rules,  being  evoked  by  conditions  which  result  from 
the  operation  of  the  eternal  law,  and  devised  and  enforced 
by  faculties  with  which  the  eternal  law  has  endowed  man  in 
order  to  enable  him  to  meet  these  conditions,  are  truly  the 
projection  of  the  eternal  law  into  the  daily  actions  and  for- 
bearances of  men,  and,  therefore,  are  within  their  sphere 
authoritative  and  infallible.  Pre-eminent  among  these 
various  systems  of  rules  is  that  which  the  political  society,  or 
State,  adopts  for  its  own  guidance  and  the  direction  of  its 
subjects.  A  political  society  or  State  is  distinguished  from 
all  other  human  associations  by  the  possession  of  sover- 
eignty, or  supreme  authority  over  itself  and  its  members.  In 
form  and  extent  a  State  may  be  a  single  family,  or  a  group  of 


§  7  NATURE    AND    AUTHORITY   OF   LAW.  7 

families  united  iu  a  tribe,  or  many  tribes  confederated  in  a 
nation.  It  may  occupy  a  few  square  miles  of  territory  and 
consist  of  a  few  scores  of  individuals,  or  it  may  permanently 
control  a  continent  populated  by  hundreds  of  millions  of  its 
citizens.  But  if  it  is  subject  to  no  human  authority  outside 
itself,  and  within  itself  exercises  supreme  dominion  over  its 
own  operations  and  over  the  lives  and  conduct  of  its  members, 
it  possesses  sovereignty  and  answers  to  the  definition  of  a 
political  society  or  State,  (a)  The  State,  like  man  himself,  to- 
gether with  the  sovereignty  which  it  enjoys,  is  the  creature 
of  the  eternal  law,  one  of  the  chief  among  the  agencies  through 
which  the  Infinite  Reason  works  out  its  vast  designs.  Man 
is  by  nature  a  social  being.  His  inherent  attributes  and 
instincts  irresistibly  impel  him  into  associations  with  other 
men,  some  sexual,  some  domestic,  some  co-operative.  His 
happiness  and  development  depend  upon  the  effect  produced 
upon  him  by  the  actions  and  reactions  which  in  society  alone 
are  possible,  and  thus  human  society  becomes  an  essential 
factor  in  the  advancement  of  the  Universe  itself.  But  society 
implies  peace  and  order.  Conflict  and  antagonism  are  not 
society,  nor  is  it  possible  that  in  an  atmosphere  of  strife  and 
contention  human  relations  should  subsist  and  exercise  their 
proper  influence  upon  mankind.  The  existence  of  society  re- 
quires that  rights  should  be  defined  and  respected;  that 
duties  should  be  recognized  and  observed;  that  injuries,  if 
any  are  committed,  should  be  redressed.  It  also  requires 
that  when  necessary  these  rights  should  be  protected,  these 
duties  enforced,  and  these  wrongs  punished  by  an  authority 
which  cannot  be  resisted  or  gainsaid.  Hence,  as  it  is  the 
function  of  human  laws  to  define  rights,  to  prescribe  duties, 
and  to  prohibit  injuries,  so  far  as  these  are  left  undefined, 
unprescribed,  and  unprohibited  by  the  divine  law,  and  as 
sovereignty  alone  can  adequately  protect  these  rights,  enforce 
•  duties  and  redress  these  wrongs,  it  follows  that  from 
the  eternal  law  which  establishes  society  the  sovereignty  of 
the  State  and  its  right  and  obligation  to  make  and  admin- 
ister laws  for  its  own  government  are  likewise  derived. 
Human  Laws  made  by  the  State  within  the  field  left  open  to 


8  AMERICAN   JURISPRUDENCE.  §  8 

it  by  the  Law  of  Nature  and  the  Divine  Law,  and  in  the  exer- 
cise of  right  reason  and  integrity  of  purpose,  are  thus  a  part 
of  the  eternal  law,  and  above  all  other  human  laws  are  its 
most  perfect  and  authoritative  expression.  Prceter  ceternam 
et  naturalem  legem  est  lex  qucedam  ab  hominibus  inventa,  secun- 
dum quam  in  particulari  disponentur  quce  in  lege  naturae  con- 
tinentur.  .  .  .  Necessarium  fuit  ad  quietam  et  pacificam 
hominum  vitam  aliqiws  ab  hominibus  leges poni,  quibus  homines 
improbi  metu  pmnce  a  vitiis  cohiberentur  et  virtutem  assequi 
possent.  .  .  .  Quoniam  .  .  .  in  temporali  lege  nihil  est  justum 
ac  legitimum  quod  non  sit  ex  lege  ceterna  profectum,  certum 
est  omnes  leges  in  quantum  participant  de  ratione  recta  in 
tantum  a  lege  ceterna,  derivari. 

Read  1  Bl.  Com.,  pp.  47-49  ;  Holland,  Ch.  iv,  pp.  40-48,  Ch. xvi, 
pp.  325-342;  Markby,  §§  1-14,  45-49  ;  Austin,  Lect.  vi, 
pp.  220-238,  290-338;  Lorimer,  Book  iii,  Ch.  i-v; 
Burlamaqui,  vol.  i,  Part  i,  Ch*  ix,  x,  Part  ii,  Ch.  vi, 
vol.  ii,  totum ;  1  Wilson,  Part  i,  Ch.  ii,  iii  ;  Woolsey, 
§§  36-41,  52  ;  Jameson,  §§  18-23,  27-33  ;  Dillon,  Lect. 
v,  pp.  144-154;  Amos,  Ch.  vii,  pp.  118-123  ;  Vattel, 
Book  i,  Ch.  i,  ii;  Walker,  Lect.  ii ;  Cooley,  C.  Law, 
Ch.  ii,  pp.  20-22,  25,  26,  40-43,  Ch.  xiv,  p.  295  ;  Cooley, 
Const.  Lim.,  Ch.  i,  pp.  1,2;  Maine,  Early  Hist.  Inst., 
Lect.  xii,  xiii;  Clark,  Part  i,  Ch.  i-xvi ;  Summa  S.  Th. 
Aquin.,  Pr.  Sec,  Quest,  xc,  Art.  ii— iv,  Quest,  xcv, 
Art.  i ;  Summa  Ph.  Zigliara,  M.  49-51. 
(a)  79  D.  123  (131);  92  U.  S.  542  (549-551);  1  Cranch, 
137  (176). 


§  8.    Of  the  Validity  of  Laws  Made  by  the  State. 

Sovereignty  manifests  itself  through  three  acts:  (1)  The 
act  of  making  laws ;  (2)  The  act  of  determining  what  rules  of 
law  are  to  be  applied  in  particular  cases;  (3)  The  act  of 
enforcing  law.  These  acts  are  commonly  known  as  the  exer- 
cise by  the  State  of  its  legislative,  judicial,  and  executive 
functions.  These  functions  are  essentially  distinct,  even 
although  they  may  be  practically  discharged  by  the  same 
person  in  whom,  as  in  an  absolute  monarchy,  the  entire  sov- 


§  8  NATURE   AND   AUTHORITY   OF   LAW.  9 

ereignty  of  the  State  resides.  The  valid  exercise  of  the  legis- 
lative function  requires  that  the  lawmaker  should  thoroughly 
understand  the  subject  concerning  which  he  is  to  legislate, 
and  that  the  subject  itself  should  be  within  his  legislative 
powers;  that  in  devising  the  rule  to  be  prescribed  he  should 
be  guided  by  right  reason  both  as  to  the  substance  of  the 
rule  and  the  mode  of  its  enforcement;  and  that  in  prescribing 
the  rule  he  should  be  animated  solely  by  an  honest  purpose 
to  promote  the  welfare  of  the  State  and  of  its  members.  To 
a  valid  judicial  act  it  is  necessary  that  the  judge  should 
fully  comprehend  the  facts  to  which  he  is  about  to  apply  the 
law;  that  he  should  know  what  rule  of  law  governs  those 
facts  and  should  correctly  understand  and  interpret  it;  and 
that  without  bias  toward  either  party  or  personal  predilection 
of  his  own  in  favor  of  any  theory  of  law  or  fact,  but  with 
the  sole  desire  to  do  absolute  justice  between  the  contestants, 
he  should  decide  the  controversy  and  define  their  rights 
and  duties.  A  valid  executive  act  requires  of  the  officer  a 
precise  obedience  to  the  mandate  of  the  law,  subjecting  the 
party  against  whom  he  acts  to  as  little  loss  and  inconvenience 
in  person  and  property  as  is  consistent  with  his  own  exact 
performance  of  his  official  duties.  Sovereignty  is  conferred 
upon  the  State  by  the  eternal  law  to  be  used  for  the  happiness 
and  development  of  its  members,  but  not  to  be  abused.  Igno- 
rant, hasty,  or  selfish  legislation ;  careless  or  impulsive  judi- 
cial acts;  cruel  and  ruthless  exercises  of  executive  power  are 
abuses,  not  the  use,  of  sovereignty.  The  laws  and  judg- 
ments and  relations  to  which  they  give  birth,  though  emanat- 
ing from  the  proper  sources,  and  consequently  in  most  cases 
entitled  to  submission  for  prudential  reasons,  are  not  valid 
laws  or  judgments  or  relations,  do  not  participate  in  the 
authority  of  the  eternal  law,  nor  bind  the  opinions  nor  the 
conscience  of  the  citizen,  (a)  Fortunately  for  society  such  in- 
valid acts,  though  too  often  performed,  speedily  defeat  them- 
selves. The  invalid  law  operates  disastrously  and  becomes 
obsolete  or  is  repealed;  the  invalid  judgment  is  soon  over- 
ruled; the  wanton  act  of  the  executive  recoils  upon  his  own 
head;  and  the  celerity  with  which  these  reactions  take  place 


10  AMERICAN    JURISPRUDENCE.  §  9 

is  as  reliable  a  test  of  the  health  of  the  body  politic  as  the 
rapidity  of  recovery  from  disease  is  of  that  of  the  human  body. 
In  a  well  governed  State  only  valid  laws  prevail;  laws  which 
are  (1)  just,  the  offspring  of  right  reason  giving  to  every  one 
his  due;  (2)  consistent  with  the  divine  law  and  the  law  of 
nature  and  with  every  other  manifestation  of  the  eternal  law; 
(3)  adapted  to  the  existing  condition  of  the  State  and  its  citi- 
zens, capable  of  their  observance,  affirming  their  accepted 
customs,  removing  their  admitted  evils,  promoting  their 
common  good;  (4)  clearly  and  definitely  expressed;  (5)  uni- 
versally promulgated  to  all  by  whom  they  are  to  be  obeyed. 
Omnem  humanam  seu positivam  legem  necesse  est  justam,  hon- 
estam,possiblli'm  secundum  naturam,  secundum patrice  consuetu- 
dinem,  loco  temporique  convenientem,  necessariam,  utilem, 
manifestam,  et  pro  communi  civium  utilitate  scriptam  esse. 

Read  1  Bl.  Com.,  p.  42  ;  Cicero,  The  Laws,  Book  i,  §§  xv,  xvi, 
Book  ii,  §  v;  Lorimer,  Book  i,  Ch.  viii,  ix  ;  Book  ii, 
Ch.  i;  Summa  S.  Th.  Aquin.,  Pr.  Sec,  Quest,  xcv, 
Art.  ii,  iii,  Quest,  xcvi,  Art.  iv-vi;  Summa  Ph.  Zig- 
liara,  M.  52-55. 
(a)  20  D.  360  (372);  48  D.  178  (183);  79  D.  236  (239). 


§  9.    Of  the  Uniformity  of  Laws. 

It  is  within  the  possibilities  of  the  future  that  all  mankind 
should  be  united  into  one  political  society  exercising  uni- 
versal sovereignty  throughout  the  globe.  But  this,  at  least 
since  the  disruption  of  the  first  domestic  society,  has  never 
yet  occurred.  From  the  creation  of  the  human  race  States 
have  constantly  arisen,  flourished,  and  disappeared.  The 
territory  which  they  occupied,  the  individuals  or  families  of 
which  they  were  composed,  have  remained,  but  the  social 
organisms  have  disintegrated  and  their  members  have  formed 
new  cohesions,  displacing  old  institutions  with  others  better 
suited  to  their  own  advanced  condition,  until  the  conceptions, 
purposes,  and  methods  of  the  modern,  civilized,  Christian 
State  have  been  evolved.  All  this  has  taken  place  in  obedi- 
ence to  the  workings  of  the  eternal  law,  whose  highest  expres* 


§10  NATURE    AND    AUTHORITY   OF   LAW.  11 

sions  through  the  intellect  and  will  of  man,  in  the  present 
stage  of  their  development,  are  these  modern  States,  some 
higher  indeed  than  others,  but  each  a  prophecy  and  promise  of 
nobler,  better,  and  more  perfect  States  to  come.  In  each  of 
them,  as  in  all  their  predecessors,  sovereignty  resides,  pre- 
scribing  and  enforcing  laws,  and  through  their  instrumen- 
tality the  Great  First  Cause  directs,  for  the  most  part,  the 
voluntary  actions  and  forbearances  of  men.  Rut  although 
the  sovereignty  of  every  State,  past  or  present,  is  necessarily 
independent  of  every  other  and  exercises  absolute  dominion 
within  its  own  territory  and  over  its  own  people,  producing 
its  own  system  of  laws  and  institutions,  yet  have  the  laws  and 
institutions  of  all  States  been,  in  most  respects,  substantially 
the  same.  Wherever  the  social  conditions  of  these  States 
have  been  alike  the  laws  devised  to  meet  them  have  been  also 
similar,  manifesting  by  this  uniformity  of  effects  the  emana- 
tion of  the  law  from  sources  equally  uniform,  the  right  reason 
and  honest  purpose  which  operating  upon  given  premises 
always  reaches  the  same  results.  The  study  of  Comparative 
Jurisprudence  daily  furnishes  new  evidence  of  this  uniformity 
of  law;  the  parallelism  between  the  most  ancient  and  the 
most  modern  systems,  between  the  institutions  of  people  the 
most  widely  separated  from  one  another  in  lineage  and  habi- 
tation, becoming  more  and  more  apparent  the  more  thoroughly 
the  investigation  is  pursued. 

Read  Amos,  Ch.  ii,  pp.  13-28. 


§  10.    Of  the   Civil  Law  and  the   Common  Law. 

Of  all  the  systems  of  law  devised  by  different  States  two 
still  exist,  by  one  or  the  other  of  which  nearly  all  the  civil- 
ized nations  of  the  modern  world  are  governed.  These  are 
the  Civil  or  Roman  Law  and  the  Common  or  English  Law. 
The  Civil  Law  was  originally  the  law  of  the  Roman  Empire, 
the  system  adopted  in  the  infancy  of  that  mighty  State  and 
developed  by  its  wonderful  social  progress  and  its  unsur- 
passed practical  wisdom  during  a  period  of  over  a  thousand 
years;  and  though  the  empire  was  long  since  dismembered, 


12  AMERICAN    JURISPRUDENCE.  §  11 

its  law  still  forms  the  basis  of  the  legal  systems  of  the  new 
organizations  into  which  the  territory  and  people  of  the 
ancient  empire  have  entered,  —  the  States  of  modern  Conti- 
nental Europe.  The  Common  Law  is  the  law  of  the  barbaric 
races  which  inhabited  Northern  Europe  from  a  remote  an- 
tiquity, and,  by  the  fusion  of  these  races  in  the  British  Isles, 
by  the  vigorous  evolution  of  their  social  and  commercial  life, 
by  the  devoted  labors  of  multitudes  of  able  lawyers  and 
judges,  and  by  the  constant  influence  exerted  on  it  by  the 
Civil  Law,  has  been  extending  and  advancing  for  more  than 
twenty  centuries,  and  is  to-day  the  law  of  England  and  the 
United  States  and  of  all  other  English-speaking  States 
throughout  the  world.  But  though  these  two  great  systems 
of  law  are  independent  of  each  other,  they  are  by  no  means 
wholly  unlike  or  often  contradictory.  The  conditions  of  the 
peoples  governed  by  them  have  been  in  many  respects  almost 
identical,  and  answering  to  these  conditions  the  laws  have 
been  in  substance  and  in  mode  of  application  frequently  the 
same.  The  study  of  each  system  thus  elucidates  the  other, 
and  one  can  hardly  now  be  called  an  educated  lawyer  who  is 
not  tolerably  familiar  both  with  the  Common  and  the  Civil 
Law. 

Read  1  Bl.  Com.,  pp.  79-81 ;  1  Kent,  Lect.  xxiii,  pp.  515-548; 

Markby,  §§  82-92;  Dillon,  Lect.  i,  pp.  22-27;  Morey, 

pp.  192-214. 


§  11.    Of  International  Law. 

The  systems  of  law  prevailing  among  nations  not  governed 
by  the  Civil  or  the  Common  Law  exercise  little  influence  upon 
the  modern  world,  and  are  gradually  disappearing  and  being 
supplanted  by  systems  more  or  less  closely  following  the 
models  of  the  Common  and  the  Civil  Law.  Of  these  no  fur- 
ther mention  need  be  made.  But  besides  the  systems  of  law 
thus  prescribed  and  enforced  by  individual  States,  there  are 
several  others  of  a  more  universal  character  which,  though 
not  originating  in  any  exercise  of  political  sovereignty,  have 
been  recognized  and  adopted  by  these  different  States  and  have 


§  12      NATURE  AND  AUTHORITY  OF  LAW.        13 

become  imbedded  in  their  individual  laws.  Chief  among 
these  is  the  body  of  rules  known  as  International  Law,  by 
which  States  govern  themselves  in  their  intercourse  with  one 
another.  This  law  is  not  prescribed  to  independent  States 
by  an  exterior  sovereign,  for  independent  States  cannot  ac- 
knowledge any  sovereignty  superior  to  their  own.  There  is 
indeed,  in  recent  times,  some  tendency  toward  such  a  limited 
confederation  between  civilized  nations  as  may  enable  them 
to  exercise  a  collective  authority  over  themselves  as  individ- 
ual States  in  reference  to  matters  in  which  they  have  a  com- 
mon interest,  but  such  a  confederation,  however  limited, 
would  involve  the  surrender  by  each  State  of  its  absolute 
dominion  over  itself  and  its  citizens,  and  therefore  is  not 
likely  at  present  to  be  realized.  International  Law  now  con- 
sists of  the  customs  which  independent  States,  in  the  exercise 
of  right  reason  and  with  a  view  to  their  own  welfare,  have 
voluntarily  observed  in  their  necessary  relations  with  one 
another,  and  these  customs,  having  been  adopted  and  sanc- 
tioned by  each  individual  State  and  expressly  made  a  part  of 
its  own  laws,  have  become  binding  upon  itself  and  its  citi- 
zens like  any  other  portion  of  its  laws.  If  citizens  violate 
these  customs  they  are  punished,  as  for  other  violations  of 
their  local  law.  If  States  infringe  them  they  subject  them- 
selves to  the  antagonism  of  other  States  and  possibly  to  war.  (a) 

Read  Woolsey,  §§  1-35. 

(a)  9  Cranch,  191 ;  175  U.  S.  677  (700,  701). 


§  12.    Of  Maritime  Law. 

A  second  universal  system  of  rules,  not  proceeding  as  such 
from  the  sovereignty  of  any  State,  is  Maritime  Law.  The 
high  seas,  including  the  oceans  and  their  waters  outside  the 
range  of  a  cannon  shot  from  the  shores  of  States,  are  not 
within  the  territory  of  any  sovereign,  and  are,  therefore, 
directly  subject  to  no  laws.  They  belong  to  the  people  of  the 
world  at  large  as  avenues  of  commerce,  and  as  such  have 
been  used  indifferently  by  all  nations  since  traffic  and  explor- 
ation first  began.     Upon  this  common  highway  and    in  the 


14  AMERICAN   JURISPRUDENCE.  §  18 

ports  which  fringe  its  boundaries,  the  citizens  of  all  States 
thus  meet  together,  and  enter  into  relations  with  one  another 
which,  like  all  other  human  relations,  must  be  defined  and 
protected  by  obligatory  rules.  Exercising  their  reason  upon 
their  conditions,  maritime  peoples,  in  prehistoric  ages, 
evolved  these  necessary  rules  and  acted  upon  them  until  they 
became  the  "customs  of  the  sea,"  recognized  by  all  navigators 
as  binding  upon  them  in  honor  and  conscience,  and  finally 
adopted  and  enforced  by  the  independent  sovereign  States  as 
a  part  of  their  own  laws.  This  system  of  Maritime  Law  is 
the  oldest  and  most  universal  of  existing  bodies  of  law,  and 
is  administered  by  the  Admiralty  courts  of  every  maritime 
nation,  whose  judgments  are  binding  throughout  the  civilized 
world,  (a) 

Read  (a)  14  Wall.  170  ;  12  How.  443. 


§  13.    Of  Ecclesiastical   Law. 

Another  system  of  rules  not  derived  from  the  sovereignty 
of  the  State,  but  still  sanctioned  and  enforced  as  law,  is 
Ecclesiastical  or  Canon  Law.  Keligion  has  always  been 
regarded  by  human  society  in  general  as  a  potent  factor  in 
the  promotion  of  the  welfare  of  mankind,  and  as  such  has 
been  fostered  and  encouraged  by  the  State.  The  rules  which 
associations  of  men,  organized  for  the  preservation  and  propa- 
gation of  religion,  have  framed  for  their  own  government  and 
that  of  their  members,  have  thus  always  been  respected  and 
approved  by  States  unless  in  their  judgment  these  rules  were 
hostile  to  their  own  interests  or  sovereignty.  In  the  ancient 
world  what  pre-eminence  was  given  to  religious  societies  and 
their  laws  is  matter  of  familiar  history.  In  the  modern 
world  the  Canon  Law  of  the  Catholic  Church,  intimately  asso- 
ciated in  character,  purpose,  and  jurisdiction  with  the  Civil 
Law,  and  the  Ecclesiastical  Laws  of  other  Christian  bodies, 
and  even  of  societies  not  adhering  to  the  Christian  faith,  have 
generally  been  regarded  by  all  civilized  States  as  binding 
on  the  members  of  these  societies  when  not  antagonistic  to 
the  interests  of  the  States;  and  though  not  directly  adminis- 


§  14       NATURE  AND  AUTHORITY  OF  LAW.         15 

tered  by  political  authority,  they  are  recognized  and  followed 
by  the  State  in  interpreting  and  enforcing  the  contracts  and 
relations  into  which  such  members  voluntarily  enter,  (a) 

Kead  1  Bl.  Com.,  pp.  82,  83;    Holland,  Ch.  v.  p.  50;    Amos, 
Ch.   vii,  pp.  138-137  :  Cooley,  C.   Law,  Ch.  xiii,  pp. 
23:3-240. 
(a)  49  D.  608,  note  ;  13  Wall.  727  ;  11  R.  95  ;  49  R.  462. 


§  14.  Of  the  Different  Significations  of  the  Phrase  "  Com- 
mon Law." 
"Common  Law"  is  a  name  of  many  significations.  Its 
broadest  sense  is  that  in  which  it  has  already  been  defined  as 
one  of  the  two  great  systems  now  in  force,  the  other  being  the 
Roman  or  Civil  Law;  and  in  that  sense  it  is  used  in  the  pres- 
ent treatise  except  when  otherwise  particularly  stated.  It  is 
also  often  employed  to  denote  those  portions  of  our  law  which 
have  never  been  explicitly  formulated  by  our  legislative  bodies, 
but  rest  upon  and  are  found  in  the  decisions  of  our  courts. 
In  this  meaning  it  is  equivalent  to  "unwritten  law'"  or  "cus- 
tomary law,"  and  is  antithetical  to  "written  law  "  or  "statute 
law."  In  another  and  narrower  sense  it  is  applied  as  an 
adjective  phrase  to  courts  and  their  procedure,  —  "common 
law  courts,"  "common  law  pleading,"  etc., — to  distinguish 
them  from  "chancery,"  "admiralty,'"  "probate,"  and  "mili- 
tary "  courts,  etc. ;  the  common  law  courts  and  proceedings 
having  originated  in  the  ancient  customs  of  the  Saxon  and 
Norman  peoples,  while  the  others  were  derived  from  the 
Civil,  the  Maritime,  the  Ecclesiastical,  or  the  International 
Law.  Common  Law,  in  another  usage,  frequently  adopted 
by  American  lawyers,  embraces  the  whole  body  of  the  English 
law,  whether  formulated  in  Acts  of  Parliament  or  not.  as  it 
existed  at  the  severance  of  our  colonies  from  the  mother 
country,  so  far  as  that  law  has  been  regarded  by  our  courts 
and  legislatures  as  suited  to  the  needs  and  conducive  to  the 
welfare  of  our  people;  and  in  this  usage  it  distinguishes  the 
laws  derived  from  England  from  the  laws  which  the  American 
people  have   devised  and   formulated    for   themselves.     The 


16  AMERICAN   JURISPRUDENCE.  §§  15,  16 

student  of  Law  will  often  be  embarrassed  by  the  multifarious 
and  sometimes  inconsistent  uses  to  which  this  term  "  Common 
Law  "  is  appropriated.  He  will  be  taught  that  certain  acts 
are  "void  at  common  law,"  only  to  learn  a  little  later  that 
by  our  statute  law  these  acts  are  valid.  He  will  read  that  for 
certain  injuries  "  the  common  law  gives  no  relief"  while  ample 
remedies  await  the  injured  party  in  our  courts  of  equity. 
But  he  will  soon  discover  that  all  legal  terminology  is  in  the 
same  hopeless  confusion,  and  that  to  understand  the  language 
of  the  law  requires  considerable  knowledge  of  the  law  itself. 
Head  Dillon,  Lect.  v,  p.  155. 


§  15.    Of  the   Common  Law  in  the  United   States. 

The  Common  Law,  as  it  exists  in  the  United  States,  is  not 
entirely  homogeneous.  Each  of  the  States  has  its  own  system 
of  laws,  and  the  United  States  as  a  nation  adds  to  these  an- 
other system,  all  of  which  are  of  sovereign  authority  within 
their  respective  spheres.  In  many  details  of  minor  import- 
ance, and  in  some  of  greater  moment,  these  systems  of  law 
differ,  so  that  it  cannot  be  always  assumed  that  rules  which 
are  in  force  in  one  State  are  operative  in  others  also,  (a)  Never- 
theless, they  are  sufficiently  alike  to  justify  their  treatment 
as  a  unitary  body  of  law  by  any  jurist  who  disclaims  the 
purpose  of  entering  into  those  minutiae  of  rule  and  procedure 
which  only  the  local  lawyer  ever  pretends  to  understand. 
Avoiding  these  it  will  be  found  that  they  constitute  a  proper 
single  subject  for  scientific  and  historical  investigation. 
Read  (a)  13  St.  290,  note ;  15  St.  672. 


§  16.    Of  the  Subjects-Matter  of  Law:  Persons  and  Things. 

Human  Laws  prescribed  by  the  State  in  the  exercise  of  its 
sovereignty,  like  all  other  forms  of  positive  law,  emanate  from 
and  are  imposed  upon  persons.  A  person  is  a  being  endowed 
with  reason  and  free-will,  and  therefore  capable  of  self- 
determination,  and  a  proper  author  and  subject  of  positive 


§  16  NATURE  AND   AUTHORITY   OF   LAW.  17 

law.  (a)  Persona  est  rationalis  naturae  individua  substantia. 
From  the  reason  and  free-will  of  the  sovereign  the  law  pro- 
ceeds ;  to  the  reason  and  free-will  of  the  subject  it  is  directed. 
The  law  thus  relates  primarily  to  persons,  though  secondarily 
and  on  account  of  persons  it  operates  also  upon  things,  and 
with  an  examination  of  the  classes,  natures,  and  attributes  of 
persons,  as  the  law  regards  them,  the  study  of  the  law  should 
properly  begin.  Persons,  in  law,  are  of  two  classes :  Natural 
and  Artificial.  Natural  persons  are  individual  men  and 
women  as  they  are  produced  by  the  processes  of  nature.  Arti- 
ficial persons  are  natural  persons  or  groups  of  natural  persons 
whom  the  law  endows  with  a  personality  in  addition  to  that 
which  they  possess  by  nature,  in  order  that  they  may  per- 
form certain  acts  or  enjoy  certain  privileges  which  to  merely 
natural  persons  might  be  impossible.  These  classes  of  per- 
sons differ  in  many  respects  from  one  another,  as  their  dis- 
cussion in  the  ensuing  chapters  will  disclose. 

Read  Markby,  §§  131,  136-144  ;  Amos,  Ch.  vi,  pp.  78-85;  Aus- 
tin, Lect.  xii,  pp.  347-354;   Summa  S.  Th.  Aquiu., 
Pars  Prima,  Quest,  xxix,  Art.  i ;  Summa  Ph.  Zigliara, 
O.  29. 
(a)  22  R.  529. 


18  AMERICAN   JURISPRUDENCE.  §  17 


CHAPTER  II. 

OF  NATURAL  PERSONS. 


SECTION  I. 

OF   THE   EXISTENCE,    IDENTITY,    AND    NAMES    OF   NATURAL 
PERSONS. 

§  17.    Of  the  Legal  Existence  of  Natural  Persons. 

A  natural  person  is  a  living  human  being  of  whatever  age, 
sex,  race,  or  condition.  The  actual  existence  of  a  human 
being  begins  with  his  conception  and  continues  till  the 
'moment  of  his  physical  death.  On  account  of  the  difficulty 
of  ascertaining  the  date  of  conception  the  law  regards  the 
personal  existence  of  a  child  as  commencing  at  the  instant  of 
quickening,  or  when  the  movements  of  the  child  in  her  womb 
are  first  felt  by  the  mother,  which  usually  occurs  about  four 
and  a  half  months  after  conception.  From  the  moment  of 
conception,  however,  if  eventually  born  alive,  the  child  is 
treated  as  having  been  alive  for  many  beneficial  purposes, 
and  while  still  in  the  womb  of  its  mother  it  has  civil  rights 
which  are  entitled  to  protection ;  a  guardian  may  be  appointed 
for  it;  or  it  may  inherit  land  or  take  it  under  a  will. (a)  If, 
however,  it  perish  before  birth,  this  antenatal  recognition  by 
the  law  is  withdrawn  and  the  existence  of  the  child,  even 
during  that  temporary  period,  is  legally  ignored.  Moreover, 
until  full  born,  a  child  is  not  the  subject  of  a  felonious  homi- 
cide, nor  the  person  causing  its  death  guilty  of  murder. 

Read  1  Bl.  Com.,  pp.  129,  130  ;  Markby,  §§  131-134;  Holland, 
Ch.  viii,  pp.  81-86. 
(a)  20  D.  598 ;  43  D.  472,  note ;  51  D.  248. 


§§  18,  19  NATURAL   PERSONS.  19 

§  18.    Of  the  Legal  Death  of  Natural  Persona. 

The  death  of  a  natural  person  is  the  extinction  of  his  phy- 
sical life.  In  all  ordinary  cases  this  is  a  fact  concerning  the 
date  of  whose  occurrence  there  can  be  no  question.  Where 
there  is  no  proof  obtainable  as  to  the  fact  or  date  of  death, 
the  law  presumes  that  the  person  reached  the  ordinary  limit 
of  human  life,  (a)  The  absence  of  a  person  from  his  customary 
home  for  more  than  seven  years,  coupled  with  the  failure  of 
any  tidings  concerning  him  to  reach  his  relations  or  neigh- 
bors, is  prima  facie  evidence  of  his  death  in  cases  where  the 
rights  and  interests  of  other  parties  are  alone  involved,  (b) 
Nothing  but  his  actual  death,  however,  can  divest  him  of  his 
own  rights,  and  whatever  may  have  taken  place  in  reference  to 
these,  on  the  false  assumption  of  'his  death,  will  be  invalid, 
and  he  can  assert  and  enjoy  them  as  if  his  continued  existence 
never  had  been  doubted,  (c)  The  civil  or  imputed  death  of  a 
still  living  person,  known  to  the  earlier  stages  of  the  Eng- 
lish law,  has  never  been  recognized  in  the  United  States. 

Read  1  Bl.  Com.,  p.  132;   Markby,  §  135. 
(a)  5  D.  727 ;  92  D.  698,  note. 
(6)  97  U.  S.  628;   8  D.  658;   22  D.  370;   91    D.  523, 

note;  96  D.  136. 
(c)  47  R.  458,  note;  30  R.  746,  note;  73  D.  122. 


§  19.    Of  the  Legal  Identity  and  Names  of  Natural  Persons. 

The  law  knows  a  natural  person,  not  by  his  face  or  figure, 
but  by  his  name.  Every  person  has  and  must  have  a  name. 
It  may  be  given  to  him  by  other  persons,  or  he  may  adopt  it 
for  himself,  or  the  law  may,  as  it  always  will  if  he  has  none 
or  it  is  unknown  to  the  law,  bestow  upon  him  one  of  its  own 
selection. (")  He  can  do  no  legal  act,  such  as  making  a  deed 
or  will  or  contract,  without  using  his  name  or  its  equivalent 
description,  nor  can  he  be  sued  for  a  private  wrong  nor  pros- 
ecuted for  a  crime  except  under  his  actual  name  or  a  name 
conferred  upon  him  for  the  occasion  which  will  become  his 
true  name  for  all  the  purposes  of  the  suit  or  prosecution  un- 
less he  objects  to  it  and  discloses  his  own.     Identity  of  name 


20  AMERICAN   JURISPRUDENCE.  §§  20,  21 

is  also  identity  of  person,  and  from  the  former  identity  the 
law  presumes  the  latter  until  the  contrary  is  proved,  (p) 

Read  (a)  84  D.  51 ;  100  D.  53. 
(6)  15  D.  468. 

§  20.    Of  Identity  of  Names:   Idem  Sonans. 

Identity  of  names  resides  in  the  sound  not  in  the  letter. 
Names  are  primarily  intended  to  be,  and  for  the  most  part 
are  spoken;  their  expression  in  writing  is  merely  incidental 
and  comparatively  infrequent.  Names  which  make  the  same 
impression  on  the  ear  —  idem  sonans  —  are  the  same  in  law, 
however  they  may  vary  in  spelling  or  in  the  written  or  printed 
characters  of  which  they  are  composed.  A  person  may  change 
his  name  ad  libitum  in  its  literal  form  provided  he  does  not 
alter  its  sound.  If  in  his  native  language  it  requires  one 
group  of  letters  to  communicate  the  audible  impression 
through  the  eye  to  the  mind  of  a  reader,  and  in  a  foreign 
language  a  quite  different  group  is  necessary  for  the  same  pur- 
pose, the  expression  of  his  name  in  the  foreign  language  de- 
mands the  use  of  the  latter  group  of  letters,  not  the  former. 
Names  are  the  same  in  sound  when  they  are  sufficiently  alike 
to  lead  the  ordinary  hearer  to  think  they  are  the  same. 
Variations  in  the  sounds  of  letters  and  in  the  accentuation  of 
syllables  are  common  to  all  spoken  languages,  and  within  the 
range  of  these  the  sounds  of  words  may  vary  without  mislead- 
ing any  intelligent  listener.  The  same  limit,  difficult  in- 
deed sometimes  in  application,  measures  the  identity  of 
personal  names.  («) 

Read  (a)  13  D.  232,  note;  39  D.  457;  27  St.  783,  note;  163 
U.  S.  452. 

§  21.  Of  Christian  Names,  Surnames,  and  Descriptive  Names. 
The  name  of  a  person  consists  of  his  Christian  name  and 
his  surname.  The  law  recognizes  but  one  Christian  name 
and  takes  no  notice  of  middle  names  or  letters,  nor  of  pre- 
fixes or  suffixes,  such  as  titles  of  office  or  honor,  nor  of  words 
used  by  the  family  and  friends  of  a  person  to  distinguish  him 


§§  22,  23        STATUS,   NORMAL   ANTD   ABNORMAL.  21 

from  others  of  the  same  name.  In  legal  documents  these 
adjuncts  to  the  name  are  sometimes  inserted,  for  they  do  not 
impair  its  identity  and  may  serve  a  useful  purpose  where  it 
might  otherwise  be  doubtful  which  of  two  persons  of  the  same 
name  was  intended.  Though  no  part  of  the  name,  they  belong 
to  the  class  of  expressions  known  as  words  of  description, 
whose  employment  is  always  legitimate  to  prevent  ambiguity.. 
A  mere  letter  of  the  alphabet  cannot  be  a  Christian  name  or- 
a  surname,  unless  its  sound  is  that  of  a  word  capable  of  being- 
used  as  a  name,  (a) 

Read  (a)  43  D.  597 ;  16  D.  163 ;  27  D.  532 ;  147  U.  S.  47. 

§  22.  Of  the  Voluntary  Adoption  or  Change  of  Personal  Names. 
As  a  person  may  adopt  a  name  where  he  has  none,  so  he  may 
change  his  name  at  his  pleasure.  It  is,  however,  one  thing 
for  him  to  select  and  use  a  new  name  in  speaking  of  himself, 
and  quite  a  different  thing  to  compel  other  persons  and  the 
public  to  recognize  and  designate  him  by  his  new  name.  If 
they  respect  his  choice  and  call  him  by  it  until  his  old  name 
passes  out  of  use  and  the  new  one  effectually  supplants  it, 
then  it  becomes  his  name  as  fully  as  if  he  had  never  had 
another.  If  they  refuse  to  recognize  it  he  may  have  recourse 
to  the  legislature  of  the  State,  or  under  the  statutes  to  the 
courts,  whose  confirmation  of  his  choice  makes  its  use  oblig- 
atory upon  all  men.  (a) 

Read  (a)  21  R.  179,  note. 


SECTION    II. 

OF    STATUS. 

Article  I. 
i 

Of  Status  in  General. 

§  23.    Of  the  Nature  of  Status. 

Every  natural  person  also  has  a  status.     Status  is  the  con- 
dition of  the  subject  as  the  sovereign  contemplates  it  when 


22  AMERICAN    JURISPRUDENCE.  §  24 

he  prescribes  the  law,  and  in  view  of  which  he  defines  the 
rules  by  which  the  subject  is  to  be  governed.  It  is  often 
said  that  all  persons  are  equal  before  the  law,  but  this  does 
not  mean  that  all  have  the  same  rights  or  are  under  the  same 
obligations.  Persons  are  equal  before  the  law  when  all  who 
have  the  same  rights  are  equally  protected  in  their  enjoyment, 
and  when  all  who  are  under  the  same  obligations  are  equally 
compelled  to  fulfil  them,  (a)  Far  in  fact  is  it  from  true  that 
the  law  recognizes  in  all  citizens  the  same  rights  or  imposes 
upon  all  the  same  duties.  On  the  contrary,  the  people  of  every 
State  are  divided  into  many  classes,  each  of  which  is  differ- 
ently regarded  by  the  law,  each  exempt  from  legal  rules  to 
which  the  others  are  subject,  each  subject  to  legal  rules  from 
which  the  others  are  exempt.  These  classes  are  formed 
sometimes  by  nature,  sometimes  by  relations  into  which  per- 
sons voluntarily  enter,  sometimes  by  the  fiat  of  the  law  itself. 
The  legal  character  of  each  class  is  its  status,  and  this  status 
is  shared  by  every  member  of  the  class  and  becomes  the  meas- 
ure of  his  legal  rights  and  duties. 

Read  Holland,  Ch   ix,  pp.  118-128;  Markby,  §§  168-180,  300; 
Morey,  pp.  229-238;    Austin,  Lect.  xl,  pp.  687- 
690,  Lect.  xli-xliii,  pp.  697-734. 
(a)  170  U.  S.  283  (293). 


§  24.    Of  Normal  and  Abnormal  Status. 

Status  is  either  normal  or  abnormal.  Normal  status  is  the 
legal  character  of  the  great  body  of  citizens  for  whom  the 
general  laws  are  made  and  to  whom  in  their  full  scope  and 
meaning  they  are  applied.  Abnormal  status  is  the  legal 
character  of  those  peculiar  classes  who  for  one  reason  or  an- 
other are  regarded  as  improper  subjects  for  the  application 
of  the  general  laws,  and  are,  therefore,  exempted  to  a  greater 
or  less  extent  from  their  operation.  Presumptively,  the  law 
being  made  by  persons  and  directed  to  persons,  the  persons 
to  whom  it  is  directed  are  able  to  receive  it;  that  is,  they 
have  sufficient  intelligence  to  comprehend  it,  sufficient  will  to 
form    the    determination   to  obey  it,  and  are  free  from  any 


§  25  STATUS   OF    INFANTS.  23 

external  coercion  which  hinders  them  from  its  complete  and 
exact  observance.  But  this  presumption  is  not  supported  by 
the  facts.  While  the  vast  majority  of  persons  answer  this 
description,  multitudes  do  not,  who  on  account  of  their  want 
of  reason,  or  weakness  of  will,  or  subjection  to  legitimate 
superiors,  or  other  recognized  limitation  or  disability,  cannot 
and  are  not  expected  to  observe  the  laws  in  the  same  way  and 
to  the  same  extent  as  ordinary  citizens.  Normal  status  is 
then  the  status  of  persons  of  mature  age,  of  sound  mind,  and 
free  from  external  coercion.  The  status  of  all  other  persons 
is  abnormal.  Concerning  persons  of  normal  status  nothing 
further  need  be  said.  All  general  laws  are  made  for  them. 
In  enacting  statutes,  rendering  decisions,  or  discussing  prin- 
ciples and  rules,  legislators,  judges,  and  law  writers  have  only 
them  in  view  unless  they  expressly  include  persons  whose 
status  is  abnormal;  and,  therefore,  every  legal  proposition, 
wherever  found,  may  be  assumed  to  be  an  exposition  of  the 
rights  and  duties  of  persons  of  normal  status  alone  until  the 
contrary  appears.  But  persons  of  abnormal  status  require 
further  description.  Their  exceptional  legal  characters,  and 
the  diverse  variations  and  departures  from  the  general  law 
which  these  necessitate,  form  an  important  part  of  the  whole 
body  of  our  laws.  The  principal  classes  of  these  persons  are  : 
(1)  Infants;  (2)  Insane  Persons;  (3)  Married  Women;  (4) 
Persons  under  Duress;  (5)  Public  Officers;  (6)  Aliens  and 
other  persons  who  are  not  citizens;  the  peculiar  rules  belong- 
ing to  each  of  which  will  next  be  considered. 
Read  Holland,  Ch.  xiv,  pp.  297,  308-313. 

Article  II. 
Of  the  Status  of  Infants. 

§  25.    Of  Infancy  and  its  Inherent  Disabilities. 

An  infant  is  a  person  under  adult  age.  The  age  at  which 
a  person  becomes  an  adult  is  fixed  by  law,  and  in  this  coun- 
try, in  the  absence  of  :i  statute  prescribing  some  other  age, 
is   twenty-one    years.      The    precise    moment  at   which   he 


24  AMERICAN   JURISPRUDENCE.  §  26 

ceases  to  be  an  infant  is  at  midnight  preceding  the  day  before 
his  twenty-first  birthday,  since  on  that  day  he  completes 
the  first  twenty-one  years  of  his  life,  and  under  the  rule  that 
the  law  knows  no  fractions  of  a  day  it  imputes  every  occur- 
rence of  the  day  to  its  first  and  every  succeeding  moment,  (a) 
During  this  period  of  his  infancy  no  act,  except  that  of  the 
law,  can  change  his  status.  Neither  the  marriage  of  an  in- 
fant, whether  male  or  female,  nor  his  formal  emancipation  by 
his  father  from  parental  control,  nor  his  own  claim  to  be  an 
adult,  nor  his  neglect  to  assert  his  privileges  as  an  infant,  can 
relieve  him  from  the  disabilities  nor  deprive  him  of  the  rights 
which  the  law  attaches  to  his  condition,  (b)  The  character 
and  extent  of  these  rights  and  disabilities  are  determined  by 
the  law  of  the  State  in  which  he  was  born  or  in  which  he  has 
his  legal  residence  or  domicil,  and  are  variable  by  the  legis- 
lature at  its  pleasure,  (c)  They  are  wholly  personal  to  himself 
and  do  not  avail  either  for  or  against  other  persons  who  may 
be  related  to  or  connected  with  him,  except  so  far  as  the  in- 
terests in  property  which  they  acquire  through  him  are  af- 
fected by  the  peculiar  rules  which  govern  his  transactions,  (d) 
All  persons  dealing  with  an  infant  are  chargeable  with  a 
knowledge  of  his  status  and  of  all  its  legal  consequences,  and 
in  ignorance  of  them  act  at  their  own  peril,  (e) 

Read  1  Bl.  Com.,  pp.  463,  464;  Walker,  Lect.  xv,  Lect.  xvi, 
pp.  275-277;  2  Kent,  .Lect.  xxxi,  p.  233;  Markby, 
§§  755-757. 

(a)  3  Harr.  (Del.)  557. 

(6)  76  D.  409  ;  88  D.  630;  102  U.  S.  300  (313);  51  R. 
676  ;  37  R.  412. 

(c)  17  D.  179. 

(d)  13  D.  161. 

(e)  22  D.  652. 

§  26.    Of  the  Control  of  an  Infant  over   his  Person  and  Prop- 
erty. 

The  status  of  an  infant  varies  from  the  normal  status  of  the 
ordinary  citizen  in  the  five  following  particulars :  (1)  Control 
over  his  own  person  and  property ;   (2)  Power  to  bind  himself 


§  26  STATUS   OF   INFANTS.  25 

by  contracts;  (3)  Liability  for  torts,  or  injuries  to  the  per 
sons  and  property  of  others;  (4)  Responsibility  for  crime; 
(5)  Subjection  to  the  decisions  of  the  courts.  The  custody 
and  control  over  the  person  and  property  of  an  infant  vest 
primarily  in  the  State.  According  to  the  modern  idea  of 
political  institutions  the  State  is  the  true  parens  patriae,  the 
father  and  guardian  of  all  its  people,  especially  of  those  who 
for  any  cause  are  unable  to  take  proper  care  of  themselves; 
and  this  paternal  supervision  it  exercises  both  through  the 
laws  which  it  frames  and  through  its  duly  appointed  officers 
and  tribunals,  but  principally  through  the  class  of  courts 
called  Courts  of  Equity,  which  have  full  jurisdiction  over  in- 
fants and  can  place  them  and  their  estates  under  such  control 
as  it  deems  expedient.  («)  Unless  the  law  through  some  of 
these  agencies  interferes,  however,  authority  over  the  persons 
of  legitimate  children  resides  in  their  father,  (b)  and  in  the 
event  of  the  death  of  the  father  the  same  authority  devolves 
upon  the  mother,  (c)  or  some  legally  designated  guardian,  (d) 
This  authority  the  parent  cannot  transfer  to  any  other  person 
except  by  binding  the  infant,  with  his  consent,  to  some  third 
party  as  an  apprentice,  thus  substituting  the  master  for  himself 
in  the  protection  and  guidance  of  the  child ;  (e)  or  by  procuring 
its  adoption  in  the  manner  provided  by  the  local  statutes,  and 
thereby  transferring  to  the  adopting  parent  the  powers  which 
previously  vested  in  himself.  (/)  Over  the  property  of  their 
minor  children  parents,  as  such,  have  no  control,  (rj)  but  its 
management  is  entrusted  to  guardians  or  trustees  appointed  by 
the  will  of  the  donor  of  the  property  or  by  a  competent  court,  (h) 
This  privation  of  self-control  of  the  infant,  being  intended 
wholly  for  his  benefit,  is  not  without  its  limitations.  An  in- 
fant who  has  no  parent  or  guardian,  or  whose  parents  or  guar- 
dians neglect  their  duties,  may  do  any  act  which  circumstances 
render  essential  to  his  welfare.  In  obedience  to  the  instincts 
of  their  nature,  infants  of  marriageable  age  —  twelve  years  for 
females,  fourteen  years  for  males,  unless  otherwise  fixed  by 
statute  —  may  marry,  and  if  thry  have  offspring,  may  provide 
in  any  necessary  manner  for  their  protection  and  support,  (i) 
In  fulfilment  of  his  duty  to  the  State  an  infant  may  enlist  in 


26  AMERICAN   JURISPRUDENCE.  §  27 

the  army  or  navy  ;  (j)  and  in  order  to  satisfy  his  inclinations 
of  affection  or  charity  he  is  permitted,  by  the  statutes  of  some 
States,  to  make  a  will  and  distribute  among  the  objects  of  his 
bounty  his  real  as  well  as  his  personal  property.  Illegiti- 
mate children  are,  in  the  eye  of  the  law,  related  only  to  their 
mothers,  to  whose  custody  they  are  entrusted  by  the  State 
subject  to  the  same  control  by  courts  of  equity,  (/c) 

Read  1  Bl.  Cora.,  pp.  -146-45.9,  461-463  ;   2  Kent,  Lect.  xxix, 
pp.  205,  206,  208-215. 
(a)  44  D.  708. 

(6)  35  D.  653  (663-668) ;  53  D.  301 ;  1  St.  307;  6  St.  653. 
(c)    6  St.  676. 

(rf)  29  D.  707,  note ;  77  D.  534. 

(e)  45  D.  399 ;  82  D.  223  ;  2  St.  177,  note ;  3  St.  115. 
(/)  14  St.  500  (506-508)  ;  39  St.  196,  note. 
(J)  71  D.  105. 
(h)  97  D.  449. 
(0    66  D.  515;  71   D.  555. 
O')  137  U.  S.  157. 
(*-)  56  D.  206,  note  ;   56  D.  257,  note;  37  St.  118. 


§  27.    Of  the  Power  of  an  Infant  to  make  a  Contract. 

An  infant  cannot  make  a  binding  contract  except  for  nec- 
essaries, nor  even  for  these  if  they  are  already  provided,  or 
would  on  his  request  be  provided,  by  his  parents  or  guar- 
dians, (a)  Necessaries  are  such  things  as  food,  clothing,  shel- 
ter, education,  medical  attendance,  and  other  matters  without 
which  the  infant  would  suffer  physical  or  mental  detriment  or 
be  deprived  of  some  advantage  which  his  station  in  life  or  the 
condition  of  his  property  requires  that  he  should  be  permitted 
to  enjoy.  Here,  again,  the  law  is  strenuous  to  protect  the 
interests  of  the  infant,  not  to  prevent  him  from  receiving 
benefits;  and  judges  what  is  necessary  for  him  in  each  in- 
stance by  its  effect  upon  his  personal  welfare,  (b)  A  binding 
contract  is  one  whose  performance  will  be  compelled  by  law, 
or  whose  breach  subjects  the  party  in  fault  to  the  payment  of 
damages  to  the  injured  party.  Not  every  seeming  contract  is 
of  this  character.     Parties  may  go  through  the  form  of  mak- 


§  27  STATUS    OF    INFANTS.  27 

ing  a  contract,  and  yet  the  contract  may,  fur  some  reason,  be 
absolutely  void  and  in  every  respect  as  if  it  bad  not  been 
made.  Or  parties  may  make  a  contract  by  which  one  of  the 
parties  will  be  bound  or  not  as  he  chooses,  while  the  other 
party  will  be  bound  if  the  former  chooses  to  be,  but  not  other- 
wise. Such  a  contract  is  called  a  ''voidable  contract."  It  is 
not  a  void  contract,  because  it  has  a  real  existence  as  a  con- 
tract and  is  capable  of  being  made  binding  ab  initio  by  a 
subsequent  act  of  ratification.  Nor  is  it  a  binding  contract, 
because  one  of  the  parties  at  least  is  free  to  repudiate  it  and 
so  reduce  it  to  complete  non-existence.  Contracts  of  an  infant 
which  are  not  for  necessaries  are,  unless  clearly  injurious  to 
him,  voidable  contracts,  (r)  The  infant  may  ratify  them  after 
he  becomes  of  age,  and  so  make  them  binding  on  the  other 
party  as  well  as  himself;  or  he  may  repudiate  them  and  so 
destroy  them  both  as  to  himself  and  to  the  other  party,  (d) 
Whether  in  any  given  case  he  must  by  some  overt  act  repu- 
diate in  order  to  destroy,  or  ratify  in  order  to  confirm,  depends 
on  the  condition  of  the  subject-matter  of  the  contract  at  the 
time  when  the  question  arises.  If  the  contract  is  still  exec- 
utory, —  that  is,  if  neither  party  has  done  anything  in  pursu- 
ance of  it,  —  it  is  prima  fade  invalid  as  to  the  infant  and  needs 
his  ratification  to  make  it  good,  (e)  If  the  other  party  has 
performed  his  part,  the  contract  isprima  facie  valid,  against 
the  infant  also  and  he  must  disaffirm  it  in  order  to  escape  its 
obligations.  (/)  If  both  parties  to  a  voidable  contract  are  in- 
fants, neither  can  so  ratify  the  contract  as  to  bind  the  other, 
but  either  may  disaffirm  it  and  render  it  completely  void. 

Read  1  111.  Com.,  pp.  465,  466;   2  Kent,  Lect.  xxxi,  pp.  234- 

239. 
(a)  75  D.  445  ;  15  D.  612;  67  D.  258. 

(6)  42  I).  537;  40  D.  542:  20  R.  160;  34  II   434;  34  R. 

449. 
(c)   23  I).  526,  note;  26  D.  251 ;  25  St.  708. 
(,/)   17  1).  735;  10  D.  709;  7  1).  134. 
(e)    21  I).  589. 
(/)  57  1).  349  (350). 


28  AMERICAN    JURISPRUDENCE.  §  28 

§  28.    Of    the   Power   of    an  Infant  to   make  a  Contract,   con- 
tinued. 

Applying  these  distinctions  to  the  apparent  contracts  of 
infants  the  law  reaches  the  following  results.  Where  an 
infant  makes  a  contract  for  necessaries,  which  he  cannot 
obtain  through  his  parent  or  guardian,  he  is  bound  by  it  and 
must  pay  the  stipulated  or  customary  price,  (a)  Co-operating 
with  his  parent  or  guardian  he  may  bind  himself  out  as  an 
apprentice  to  receive  from  his  master  instruction  and  support 
in  consideration  of  his  obedience  and  services,  (b)  If  he  agrees 
with  an  adult  employer  to  work  for  wages  he  may  do  the 
work  or  not  as  he  pleases,  but  if  he  offers  to  do  it  the  em- 
ployer must  accept  it  and  recompense  him  according  to  the 
terms  of  his  contract,  (c)  Should  he  enter  into  partnership 
with  an  adult,  the  adult  cannot  retire  from  the  firm  but  the 
infant  is  not  obliged  to  continue  in  it  any  longer  than  he 
wishes;  as  long  as  he  does  remain  he  is  entitled  to  his  share 
of  the  profits  and  yet  does  not  become  individually  responsi- 
ble to  its  creditors  for  the  partnership  debts,  (d)  He  may  act 
as  the  agent,  attorney,  or  servant  of  others,  binding  them  by 
his  acts  and  receiving  compensation  for  his  labor,  but  he  can- 
not appoint  a  servant,  agent,  or  attorney  for  himself  except  as 
a  means  for  obtaining  those  necessaries  for  which  the  law 
allows  him  to  contract,  (e)  When  he  buys  or  sells  property 
he  may  subsequently  ratify  or  revoke  the  sale.  If  the  prop- 
erty is  personal  property  he  may  revoke  within  a  reasonable 
time  even  during  his  minority,  but  he  cannot  ratify  the  pur- 
chase or  the  sale  of  any  property,  nor  revoke  that  of  real 
property,  until  after  he  becomes  of  age.  (/)  The  ratification 
may  be  made  by  acts  or  words,  or  by  mere  failure  to  act.  If 
he  continues  to  enjoy  the  fruits  of  a  transaction  after  the  law 
allows  him  to  repudiate  it,  his  acquiescence  is  regarded  as  a 
confirmation.  Conversely,  an  act  inconsistent  with  the 
validity  of  the  former  contract,  such  as  the  conveyance  of  the 
sold  property  to  another  person,  or  any  assumption  of  domin- 
ion over  it,  or  the  return  of  the  purchased  articles  to  the 
seller  with  a  demand  for  the  repayment  of  the  price,  amounts 
to  a  revocation.     But   as  a  contract  of   sale  is  always  per- 


§  29  STATUS    OF   INFANTS.  29 

formed  at  least  on  one  side  by  the  delivery  of  the  property 
sold,  the  presumption  is  in  favor  of  the  contract  and  the  act  of 
revocation  must  be  prompt  and  unequivocal,  (g)  Where  it  is 
possible  a  revocation  must  be  accompanied  by  the  restoration 
to  the  other  party  of  the  property  purchased  or  the  price 
received,  but  if  the  infant  party  is  unable  to  do  this  he  may 
nevertheless  revoke  the  sale  although  the  other  party  suffers 
serious  injury,  (k)  For  those  who  deal  with  infants  are  con- 
sidered as  accepting  in  advauce  all  the  losses  which  may  fall 
upon  them  through  the  exercise  by  the  infant  of  his  legal 
rights.  The  same  power  to  revoke  the  contracts  of  an  infant, 
in  case  he  dies  in  infancy,  vests  in  his  heirs  and  representa- 
tives to  whom  the  property,  if  unaffected  by  the  contract, 
would  descend,  and  they  receive  it,  if  they  so  elect,  free  from 
the  obligations  which  his  unratified  agreements  seem  to  im- 
pose upon  it.  (i) 

Read  2  Kent,  Lect.  xxxi,  pp.  239,  240,  242. 

(a)  23  St.  780. 

(b)  34  D.  537. 

(c)  23  D.  651 ;  14  R.  580;  32  R.  152. 

(d)  7  D.  229;  1  St.  379. 
0)   10  D.  747;  65  U.  756. 
(/)  65  D.  194. 

(g)  10  Pet.  58;  9  Wall.  617  ;   102  U.  S.  300;  167  U.  S. 

688;  18  St.  569,  note. 
(h)  62  D.  732,  note  ;  46  R.  314. 
(0    19  D.  71. 


§  29.    Of  the  Liability  of  an  Infant  for  his  Torts. 

An  infant  is  liable  for  the  injuries  he  inflicts  upon  the  per- 
sons and  property  of  others,  though  not  in  all  cases  precisely 
to  the  same  extent  as  an  adult.  To  refrain  from  injuries  of 
this  kind  requires  but  little  exercise  of  the  intellect  and  will, 
and  the  law  deems  it  safer  to  demand  this  exercise  of  infants 
than  to  subject  the  rest  of  the  community  to  the  ravages  of 
dangerous  and  irresponsible  human  beings.  But  in  estimat- 
ing their  liability  attention  is  paid  to  their  immaturity  and 


30  AMERICAN   JURISPRUDENCE.  §  3C* 

inexperience.  Where  the  element  of  intention  enters  into  a 
wrong  as  one  of  its  integral  parts,  as  in  the  case  of  fraud,  or 
where  equivocal  acts  must  be  interpreted,  the  mental  opera- 
tions of  the  infant  are  not  judged  by  the  same  standard  as 
those  of  the  adult.  With  exceptions  such  as  these  there  is, 
however,  no  difference  in  their  responsibility.  For  tres- 
passes to  land,  for  assaults,  libels  and  slanders,  for  injuries 
to  or  the  misappropriation  of  personal  property,  they  are  lia- 
ble in  damages  although  the  wrongful  act  was  perpetrated  at 
the  instigation  and  under  the  direction  of  an  adult,  (a)  But 
where  a  wrongful  act  or  omission  is  so  related  to  a  voidable 
contract  that  to  hold  the  infant  liable  for  the  wrong  would 
be  an  indirect  enforcement  of  the  contract,  the  protection 
which  the  law  affords  him  against  the  contract  extends  to 
the  wrong  also,  and  he  can  be  sued  neither  upon  the  one 
nor  for  the  other,  (b) 

Read  2  Kent,  Lect.  xxxi,  p.  241. 

(a)  84  D.  741 ;  33  D.  177,  note  ;  17  D.  756  ;  4  R.  290;  50 

R.  381,  note. 

(b)  58  R.  53 ;  56  D.  85. 


§  30.    Of  the  Responsibility  of  an  Infant  for  Crime. 

An  infant  under  seven  is  incapable  of  crime.  This  is  an 
arbitrary  rule  of  law,  variable  at  the  pleasure  of  the  State, 
but  adopted  in  order  to  escape  the  necessity  of  ascertaining 
in  every  individual  case  whether  the  accused  infant  has 
reached  that  degree  of  mental  and  moral  development  which 
renders  him  justly  responsible  for  his  conduct.  Every  crime 
includes  a  criminal  intent;  that  is,  an  intellectual  apprehen- 
sion of  the  nature  and  unlawfulness  of  the  criminal  act  and  a 
voluntary  assent  of  the  will  to  its  performance;  and  this  re- 
quires a  certain  amount  of  knowledge,  reasoning  power,  and 
self-control.  The  investigation  of  this  question,  in  reference 
to  infants  of  tender  years  who  may  happen  to  commit  unlaw- 
ful acts,  would  not  only  be  exceedingly  difficult  but  in  most 
instances  would  lead  to  very  unreliable  results:  and  the  law.* 


§  30  STATUS    OF    INFANTS.  31 

following  the  common  opinion  of  mankind  which  fixes  the 
"age  of  reason,"  or  the  date  when  moral  responsibility  com- 
mences, at  seven  years,  assumes  that  prior  to  that  time  the 
infant  could  not  have  a  criminal  intent  and  therefore  could 
not  be  guilty  of  a  crime.  Infants  over  fourteen  years  of  age, 
unless  insane  or  otherwise  relieved  from  responsibility,  are 
capable  of  crime.  At  that  age  they  have  attained  physical 
and  mental  maturity,  are  able  to  marry  and  become  heads  of 
families,  and  properly  stand  before  the  criminal  law  on  the 
same  footing  as  adults.  Between  the  ages  of  seven  and  four- 
teen the  law  neither  asserts  nor  denies  capacity.  Many  chil- 
dren develop  so  slowly  that  even  at  fourteen  they  can  scarcely 
entertain  a  criminal  intent;  others  so  rapidly  that  they  pos- 
sess knowledge  and  conscience  and  self-control  at  the  age  of 
seven.  Within  this  debatable  period  the  law,  therefore, 
requires  that  every  case  shall  be  examined  by  itself  as  best 
it  may,  presuming  always  that  capacity  does  not  exist  unless 
its  existence  is  clearly  proved,  (a).  Another  question,  similar 
enough  to  this  to  be  sometimes  confounded  with  it  but  in 
reality  quite  different,  arises  in  reference  to  the  capacity  of 
infants  to  commit  certain  peculiar  crimes.  There  are  some 
crimes  in  which  the  external  act  derives  its  unlawful  charac- 
ter from  the  intent,  or  purpose,  or  design  with  which  it  is 
committed.  The  sending  of  poison  to  another,  for  example, 
is  not  of  itself  a  crime,  but  if  sent  with  the  design  that  the  re- 
ceiver shall  take  it  and  die  it  is  an  attempt  to  kill.  The  sign- 
ing of  another's  name  to  a  promissory  note  for  amusement  is 
not  contrary  to  law,  but  if  done  with  the  intent  to  defraud  any- 
body it  is  the  crime  of  forgery.  This  kind  of  intent,  which 
is  evidently  very  different  from  the  criminal  intent  above 
described  as  the  test  of  capacity  for  any  crime  whatever,  is 
called  a  "specific  intent,"  is  present  in  comparatively  few 
crimes,  and  cannot  exist  unless  the  person  performing  the 
act  knows  what  might  possibly  be  accomplished  by  it,  and 
wills  that  a  particular  result  should  follow  it.  Adults  as  well 
as  infants  may  thus  perform  acts  which,  if  coupled  with  the 
specific  intent  to  produce  certain  foreseen  consequences  by 
means  of  those  acts,  would  be  crimes,  but  which,  because 


32  AMERICAN   JURISPRUDENCE.  §  31 

they  do  not  know  that  these  consequences  may  attend  the  acts, 
or  because  they  do  not  design  that  such  consequences  shall 
attend  them,  are  not  offences  against  the  law.  This  question 
of  specific  intent,  with  its  elements,  — knowledge  and  purpose, 
—  is  always  open  to  inquiry  in  every  case  where  a  crime  of 
which  specific  intent  is  an  ingredient  is  charged,  and  its 
existence  must  be  clearly  proven  even  where  the  accused  is 
of  full  age  aud  mental  capacity.  And  since,  the  younger  in- 
fants are,  the  less  knowledge  and  the  less  definite  purpose 
to  achieve  injurious  results  they  probably  possess,  the  law 
presumes  against  the  presence  of  a  specific  intent  in  their 
minds  the  more  strongly  in  proportion  to  their  youth,  and  re- 
quires the  more  positive  and  convincing  evidence  of  its 
existence,  (b) 

Read  1  Bl.  Com.,  pp.  464,  465;  4  Bl.  Com.,  pp.  22-24. 

(a)  70  D.  494,  note ;  7  D.  592 ;  4  St.  207 ;  45  D.  536. 

(b)  5  St.  905. 


§  31.   Of  the   Subjection    of  Infants  to   the   Decisions   of   the 
Courts. 

According  to  the  general  laws  which  affect  persons  of  nor- 
mal status,  an  action  for  an  injury  may  be  brought  and 
pressed  to  judgment  as  soon  as  the  injurious  act  is  committed; 
either  party  is  able  to  appear  in  court  in  person  or  by  attor- 
ney and  prosecute  or  defend  the  suit;  and  both  parties  are 
bound  irrevocably  by  the  final  judgment.  The  status  of  an 
-infant  is  governed  in  these  respects  by  somewhat  different 
rules.  An  infant  cannot  institute  a  legal  proceeding  by  him- 
self alone,  but  must  sue  by  his  guardian  if  he  has  one,  and  if 
not  by  his  "prochein  ami"  Or  "next  friend,"  who  may  be  his 
father  or  any  other  person  sufficiently  interested  in  him  to 
undergo  the  trouble  of  the  lawsuit  and  become  responsible 
for  the  taxable  costs,  (a)  When  an  infant  is  sued  he  cannot 
appear  and  defend  alone,  but  only  by  his  guardian,  and  if  he 
has  no  guardian  a  guardian  ad  litem  must  be  appointed  for 
him  by  the  court.     The  particular  powers  and  obligations  of 


§  31  STATUS    OF    INFANTS.  33 

a  guardian  ad  litem  are  fixed  by  the  law  of  the  State  in  which 
he  is  appointed,  but  it  is  his  general  duty  to  protect  the  rights 
of  the  infant  in  the  litigation.  In  selecting  such  a  guardian 
the  court  is  bound  to  exercise  due  care.  The  infant  must 
have  been  legally  summoned  into  or  be  present  in  the  court, 
the  concurrence  of  his  parents  in  the  appointment  must  be 
obtained  if  possible,  and  interference  of  the  adverse  party 
or  his  counsel  with  the  appointment  must  be  effectually 
excluded.  In  default  of  such  a  lawfully  appointed  guardian 
no  judgment  rendered  against  an  infant  defendant  can  be 
valid,  and  though  it  is  voidable  only  and  not  void,  and  con- 
sequently cannot  be  attacked  in  an  independent  proceeding, 
it  may  be  reversed  on  a  writ  of  error  brought  either  by  the 
immediate  blood  relations  of  the  infant  or  by  the  infant  him- 
self after  his  majority.  A  judgment  in  favor  of  an  infant 
defendant  against  an  adult  plaintiff  is  valid  in  spite  of  irregu- 
larities in,  or  the  entire  absence  of,  the  appointment  of  a 
guardian  ad  litem,  (b)  Again,  in  former  times  there  were  cer- 
tain actions  relating  to  real  property,  which  even  though 
lawfully  commenced  could  not  be  prosecuted  to  judgment 
ag'ainst  an  infant,  but  the  infant  (called  the  parol  or  pleader) 
could  demur,  or  ask  for  a  suspension  of  proceedings,  and  by 
this  parol  demur  postpone  the  farther  consideration  of  the 
case  till  after  his  majority.  Substantially  the  same  privilege 
is  his  at  present  whenever  the  rendition  of  a  judgment  against 
him  would  be  the  indirect  enforcement  of  a  contract  which  he 
will  have  a  right  to  disaffirm  after  he  becomes  of  age.  In 
other  cases  the  courts  of  equity,  which  have  supreme  juris- 
diction over  all  the  affairs  of  infants,  may  entertain  such 
actions  and  enforce  such  decrees  with  reference  to  his  real 
and  personal  property  as  his  own  interests  and  justice  to  other 
parties  may  require,  (c)  Suits  for  or  against  an  infant  must 
be  brought  in  his  own  name  notwithstanding  his  inability  to 
appear  alone  and  prosecute  or  defend,  and  service  of  process 
upon  him  in  the  mode  designated  by  the  law  of  the  State  is 
sufficient  though  the  mode  be  one  which,  as  for  instance  by 
publication  in  a  newspaper,  would  in  all  probability  be  in- 
effectual, (j/j     Where  his  infancy  would  be  a  defence  he  can 

8 


34  AMERICAN    JLHISPEDDENCE.  §32 

always  assert  it  and  rely  upon  it.  whatever  may  have  been 
his  previous  representations  to  the  contrary,  (e) 

Read  1  Bl.  Cum.,  p.  464. 

O)  ]  D.  26;  21  D.  70;  30  1).  425;  19  D.  409. 
(6)   74  D.  83;  23  St.  858;  8  Pet.  128  (144). 
(c)   89  D   172  ;  74  I).  291. 
(</)  103  U.  S.  435  ;  157  U.  S.  195  (198). 
(e)   7  St.  418;  44  D.  283,  note. 


Article  III. 
Of  the  Status  of  Insane  Persons. 

§  32.    Of  Insanity  in  General. 

Another  class  of  persons  whose  status  is  abnormal  embraces 
those  who  are  non  compos  mentis,  or  of  unsound  mind.  Per- 
sons of  unsound  mind  were  anciently  divided  by  the  law  as 
well  as  by  common  opinion  into  two  groups  :  Idiots  and 
Lunatics.  Idiots  were  those  whose  insanity  was  permanent; 
Lunatics  those  who  had  lucid  intervals.  The  former  were 
irresponsible  for  their  acts,  were  subject  to  the  physical  con- 
trol of  relatives  or  public  officers,  and  their  property  vested  in 
the  sovereign,  as  their  legal  protector,  during  their  lives. 
The  latter,  during  their  lucid  intervals,  enjoyed  the  rights  and 
were  under  the  obligations  incident  to  a  normal  status,  but 
were  at  other  times  in  most  respects  in  the  same  legal  condi- 
tion as  idiots.  The  subject  of  insanity  was  then  but  little 
understood.  Many  mental  disorders  were  regarded  and 
treated  as  voluntary  eccentricities,  and  the  presumption  of 
sanity,  which  then  obtained  and  still  obtains  in  reference  to 
every  person,  was  sufficient  to  outweigh  all  evidence  of  acts 
or  words  which  did  not  demonstrate  either  that  the  person 
had  no  available  intellect  and  will,  or  was  for  the  time  being 
wholly  beyond  their  control,  (a)  With  the  advance  of  medical 
science,  however,  the  disorders  of  the  mind  have  been  perceived 
to  be  of  such  great  variety,  and  every  variety  of  so  many 
different  degrees,  that  it  might  almost  be  concluded  that  the 


§  33  STATUS   OF   INSANE   PERSONS.  3o 

really  sane  iiian  is  the  exception  rather  than  the  rule.  In 
every  degree  of  every  one  of  these  varieties  the  state  of  the 
intellect  and  will  departs  more  or  less  from  that  in  which  the 
will  and  intellect  of  a  person  of  normal  status  are  supposed  to 
be,  and  in  which  they  must  be  in  order  to  make  him  a  proper 
subject  for  the  provisions  of  the  general  law.  This  variety  of 
already  known  mental  conditions,  and  the  fact  that  science  is 
rapidly  advancing  in  the  discovery  of  others,  renders  the 
whole  subject  an  extremely  difficult  and  uncertain  one  in  its 
bearings  upon  legal  responsibility,  and  compels  the  investiga- 
tion of  each  case  by  itself  not  only  as  to  the  variety  and  degree 
of  the  mental  aberration  but  as  to  the  effect  of  that  aberration 
upon  the  particular  contract,  crime,  or  other  act  or  relation 
which  may  form  the  subject  of  the  controversy.  Therefore, 
without  attempting  any  detailed  classification  of  mental 
diseases,  which  at  the  best  could  be  only  tentative  and  open 
to  revision,  a  few  distinctions  helpful  to  the  understanding  of 
existing  rules  of  law  may  be  briefly  indicated. 

Head  1  Bl.  Com.,  pp.  302-306 ;  Markby,  §§  723-733. 
(a)  29  D.  33. 


§  33.    Of  the  Varieties  and  Degrees  of  Insanity. 

And  first,  insanity  may  extend  to  both  the  intellect  and  the 
will,  or  it  may  affect  the  intellect  leaving  the  will  free,  or  it 
may  affect  the  will  while  the  intellect  remains  unclouded. 
Insanity  affecting  the  intellect,  if  of  sufficient  degree,  whether 
the  will  is  disordered  or  not,  is  always  recognized  by  the  law 
as  changing  the  status  of  the  person  and  as  bringing  him 
under  the  special  rules  relating  to  the  insane,  (a)  Insanity  of 
the  will,  called  also  "moral  insanity"  and  "emotional  in- 
sanity," has  sometimes  been  held  by  the  courts  to  be  impos- 
sible ;  sometimes,  though  admitted  to  be  possible,  it  has  been 
repudiated  as  too  difficult  of  proof  to  warrant  its  legal  recogni- 
tion as  a  release  from  responsibility,  especially  for  crime  ;  but 
is  now  more  properly  treated  as  a  fact  to  be  investigated  like 
the  condition  of  the  intellect  by  the  best  available  method, 
the  responsibility  of  the  person  to  be  measured  by  what  can 


36  AMERICAN   JURISPRUDENCE.  §  33 

be  ascertained  concerning  his  actual  power  of  self-control,  (b) 
Second,  insanity  of  the  intellect  may  consist  in  simple  weak- 
ness of  the  mind  due  to  old  age,  bad  habits,  physical  disease, 
arrested  development,  or  other  causes,  rendering  the  person 
unable  to  perceive,  or  to  apprehend,  or  to  judge  of  things,  as 
correctly  as  sane  persons  ordinarily  do;  or  it  may  consist  in 
the  subjection  of  the  intellect  to  delusions,  to  unreal  and 
imaginary  conditions  of  things  which  are  honestly  accepted 
by  the  intellect  as  true  and  thus  govern  the  convictions  and 
conduct  of  the  person.  Third,  these  disorders  of  the  intellect 
or  of  the  will  may  be  either  total  or  partial.  Weakness  of 
the  mind  may  extend  to  all  its  faculties,  disabling  the  person 
from  perceiving,  apprehending,  or  judging  anything  correctly ; 
or  it  may  be  confined  to  one  or  more  faculties,  leaving  the 
others  comparatively  sound.  For  example,  in  senile  de- 
mentia, or  that  weakness  of  mind  which  frequently  accom- 
panies old  age,  all  the  mental  faculties  are  impaired  and 
sometimes  become  wholly  dormant;  while  in  that  class  of 
persons  who  are  called  "  incapables  "  to  distinguish  them  from 
those  more  evidentty  insane,  their  insanity  manifests  itself  in 
want  of  judgment  rather  than  in  the  inefficiency  of  their  per- 
ceptive or  apprehensive  powers.  Delusions  also  may  pervert 
the  operations  of  the  entire  intellect  or  may  control  them  to 
but  a  very  limited  degree.  An  insane  person,  for  instance, 
who  believes  himself  to  be  some  other  person  or  a  being  of 
some  other  race  than  man,  labors  under  a  delusion  which 
changes  his  entire  environment,  as  he  contemplates  it,  and 
consequently  affects  all  the  conclusions  of  his  intellect  and  all 
his  actions.  Another,  whose,  delusion  consists  in  the  erro- 
neous conviction  that  his  wife,  or  child,  or  parent  is  his 
deadly  enemy  may  be  sane  in  thought  and  conduct  as  to  every 
other  person  and  as  to  all  the  affairs  of  life  in  which  the 
parent,  child,  or  wife  is  not  concerned.  The  will  may  be  so 
weak  by  nature,  or  as  the  result  of  long  disuse  or  of  external 
violent  suppression  in  early  childhood,  that  the  person  "has 
no  will  of  his  own,"  no  proper  self-control,  but  is  the  mere 
passive  instrument  of  his  own  emotions  or  of  the  instigations 
of  others ;  or,  on  the  other  hand,  this  want  of  self-control  may 


§  34         STATUS  OF  INSANE  PERSONS.  37 

exist  only  in  reference  to  one  special  impulse  which  the  person 
is  unable  to  resist,  as  to  steal  articles  of  a  particular  character, 
to  set  fire  to  certain  kinds  of  buildings,  to  kill  or  mutilate 
children  or  women  in  peculiar  ways,  —  although  as  to  all 
other  influences  he  is  able  to  yield  or  to  refrain  as  he  deems 
best.  Fourth,  insanity  of  the  intellect  or  will  may  be  per- 
manent or  temporary.  Disorders  which  are  due  to  causes 
from  which  there  is  no  escape  or  recovery,  such  as  infirmity 
of  the  mind  arising  from  old  age,  or  an  inherent  weakness  of 
the  will,  continue  during  life,  though  not  always  with  uniform 
intensity.  The  inability  to  resist  a  certain  special  class  of 
impulses  is  also  generally  constant  and  incurable.  Delusions 
are  sometimes  perpetual  and  sometimes  transient;  and  tem- 
porary loss  of  self-control  under  the  stimulus  of  some  extreme 
emotion  is  even  more  frequent  than  a  chronic  weakness  of 
the  will.  These  transient  disorders  often  occur  suddenly 
without  warning,  enduring  a  few  moments,  days,  or  weeks, 
as  the  case  may  be,  and  then  as  suddenly  and  unaccountably 
disappear. 

Read  Taylor,  Med.  Jar.  "  Insanity." 

(a)  17  D.  311. 

(b)  83  D.  401 ;  11  II.  731 ;  15  Wall.  580  ;  14  St.  879  ;  16 

St.  408. 


§  34.  Of  the  Presumption  of  Sanity:  Burden  of  Proof:  Evi- 
dence of  Insanity. 
The  foregoing  general  distinctions  between  the  varieties 
and  degrees  of  insanity  considered  from  a  practical  rather 
than  a  scientific  point  of  view,  though  by  no  moans  exhaust- 
ing the  subject,  will  render  the  rules  of  law  relating  to  insane 
persons,  and  their  application  to  particular  states  of  fact, 
more  fully  and  easily  intelligible.  As  every  person  is  pre- 
sumed to  be  of  normal  status  and  subject  to  the  ordinar 
rules  of  law  until  the  contrary  appears,  so  the  question  as  to 
alleged  insane  persons  always  is  whether  their  aberrations  of 
mind  or  will  are  sufficient  in  character  and  degree  to  deprive 
them  of  that  intelligence  and  freedom   which  all  persons  of 


38  AMERICAN   JURISPRUDENCE.  §  34 

normal  status  necessarily  possess.  («)  This  is  a  question  of  fact, 
the  burden  of  proof  in  reference  to  which  rests  on  the  party 
who  alleges  the  insanity,  and  he  must  support  his  allegation 
by  evidence  of  insane  acts,  words,  or  habits  on  the  part  of  the 
alleged  insane  person,  not  by  the  opinions  of  his  family  or 
neighbors  or  even  of  medical  attendants  unless  coupled  with 
such  facts  as  show  the  opinions  to  be  justifiable,  (h)  More- 
over, the  question  of  insanity  as  it  arises  in  legal  controversies 
always  has  relation  to  some  particular  occasion  or  transaction, 
such  as  the  making  of  a  will  or  contract,  the  commission  of  a 
tort  or  crime,  or  the  appointment  or  removal  of  a  guardian  ; 
and  it  is  immaterial  whether  before  or  after  that  transaction  or 
occasion  the  alleged  insane  person  was  sane  or  insane,  except 
so  far  as  his  previous  or  subsequent  condition  may  tend  to 
show  the  state  of  his  intellect  or  will  at  the  date  in  question,  (c) 
Nor  is  the  cause  which  produced  the  insanity  of  any  con- 
sequence provided  the  insanity  actually  exists.  It  is  true 
that  temporary  insanity  immediately  superinduced  by  volun- 
tary drunkenness  is  not  accepted  as  an  excuse  for  crime,  but 
this  is  a  rule  of  public  safety,  and  here  the  criminal  intent, 
which  in  a  sober  criminal  is  manifested  only  in  the  criminal 
act,  expresses  itself  in  the  deliberate  suspension  of  his  direc- 
tion and  control  over  his  own  actions  and  the  letting  himself 
loose  upon  the  community  as  an  irrational  and  unrestrained 
implement  of  destruction  equally  responsible  for  the  conse- 
quences as  would  be  the  owner  of  a  vicious  animal  who 
should  turn  it  out  to  prey  upon  the  public.  But  this  rule 
obtains  only  in  the  case  of  crimes  and  does  not  apply  to 
private  rights  and  obligations:  and  even  crimes  are  over- 
looked where  their  perpetrator  is  permanently  insane,  or  has 
become  liable  to  repeated  fits  of  insanity,  as  the  indirect 
result  of  long  continued  habits  of  intoxication,  (d) 

Read  Markby,  §§  751-754 ;  Walker,  Lect.  xvi,  pp.  277-280. 
(a)  27  St.  689. 
(6)   6  D.  58;  10  D.  444. 
(c)   21  D.  732;  71  D.  431. 
{<!)  8  St.  886 ;  1  St.  595 ;  34  D.  340. 


§  35  STATUS    OF    INSANE    PERSONS.  39 

§  35.  Of  the  Power  of  an  Insane  Person  to  make  a  Contract. 
The  peculiar  rules  of  law  governing  the  status  of  insane 
persons  relate  to  the  following  subjects:  (1)  The  power  of 
an  insane  person  to  make  a  binding  contract;  (2)  His  power 
to  make  a  valid  will;  (3)  His  liability  for  his  injuries  to  the 
private  rights  of  others;  (4)  His  responsibility  for  crimes; 
(5)  His  standing  in  the  courts;  (6)  The  subjection  of  his  per- 
son or  property  to  the  control  of  a  guardian.  As  to  each  of 
these  subjects  the  practical  distinctions  between  the  varieties 
and  degrees  of  insanity  must  be  borne  in  mind.  And  first,  as 
to  the  power  of  an  insane  person  to  make  a  binding  contract. 
With  the  exception  of  those  insane  persons  who  have  been 
expressly  deprived  of  their  contracting  power  by  being  placed 
under  a  legal  guardian,  the  law  presumes  that  every  insane 
person  had  the  capacity  to  make  any  contract  which  he  went 
through  the  outward  form  of  making.  («)  There  is  no  arbi- 
trary rule  in  his  case,  as  in  that  of  infants,  limiting  his  re- 
sponsibility because  he  is  in  a  certain  general  condition. 
Similar  as  the  status  of  insane  persons  is  to  that  of  infants  in 
many  particulars,  there  is  no  true  parallelism  between  them. 
The  infant  because  he  is  an  infant  comes  under  special  ruli  s 
adapted  to  the  condition  of  infancy  and  therefore  equally  ap- 
plicable to  every  infant.  But  the  special  rules  applied  to 
insane  persons  are  not  prescribed  with  a  view  to  any  general 
condition  of  insanity  in  which  all  insane  persons  alike  partici- 
pate, although  under  the  ancient  ideas  of  insanity  heretofore 
mentioned  some  such  community  of  condition  may  have  been 
incidentally  recognized  by  the  law.  Hence  the  contract  of  an 
insane  person  is  not  void  or  voidable  simply  because  he  is 
insane,  but  only  when  his  insanity,  by  reason  of  its  character 
and  degree,  so  affected  him  in  the  making  of  the  contract 
that  he  could  not  have  made  it  with  that  full  intelligence  and 
freedom  of  self-control  which  the  law  requires  in  order  to 
make  any  contract  valid.  In  reference  to  every  apparent 
contract  of  an  insane  person  there  are,  therefore,  two  points 
to  be  considered:  (1)  The  nature  of  the  contract ;  and  (2)  The 
variety  and  degree  of  the  insanity.  If  the  latter  were  such 
that  the  former  could  not  have  been  understood  in  all  its  details 


40  AMERICAN   JURISPRUDENCE.  §  35 

and  consequences  and  freely  accepted,  the  contract  is  not 
binding.  If,  on  the  contrary,  in  spite  of  his  insanity  the 
insane  person  could  have  comprehended  the  terms  and  obli- 
gations of  the  contract,  and  was  not  constrained  to  enter  into 
it,  his  responsibilities  under  it  are  the  same  as  those  of  any 
sane  person  would  have  been,  (b)  Thus  the  contract  of  an 
insane  person  for  necessaries  for  himself,  his  wife  or  children, 
in  pursuance  of  which  the  necessaries  are  delivered  to  and 
consumed  by  him,  is  so  far  valid  that  he  can  be  compelled  to 
pay  for  them  the  customary  and  reasonable  price,  since  every 
insane  person  who  can  go  through  the  form  of  purchasing 
necessaries  may  properly  be  chargeable  with  sufficient  under- 
standing of  his  bodily  needs  to  render  such  a  contract  the  con- 
current act  of  his  intelligence  and  will,  (c)  Contracts  made  by 
an  insane  person  whose  insanity  consists  in  a  special  delusion, 
or  an  inability  to  resist  particular  impulses,  are  binding  when 
they  have  no  connection  with  and  could  not  have  been  influ- 
enced by  that  impulse  or  delusion.  Persons  afflicted  with  an 
extreme  general  weakness  of  the  mind  or  will,  or  under  some 
delusion  which  covers  the  whole  field  of  their  experience, 
usually  have  no  contracting  power,  though  even  in  such  cases 
its  absence  is  not  to  be  assumed  without  investigation.  The 
contract  of  an  insane  person,  when  not  binding,  is  now  re- 
garded as  voidable  rather  than  void,  and  consequently  valid 
as  against  the  sane  party  to  it  and  capable  of  ratification  or 
disaffirmance  by  the  insane  party  if  he  ever  regains  the  use 
of  his  faculties,  (d)  The  extreme  hardship  of  this  doctrine  to 
the  sane  party,  who  might  thus  lie  under  the  obligations  of 
the  contract  during  the  entire  life  of  the  insane  party,  although 
it  was  apparent  that  his  insanity  was  incurable  and  that  he 
never  would  be  able  to  ratify  and  fulfil  the  contract  upon  his 
part,  is  somewhat  relieved  by  the  further  rule  that  the  con- 
tracts of  insane  persons  when  executed  are  valid  if  the  sane 
party  entered  into  them  in  good  faith,  without  knowledge 
of  or  a  sufficient  reason  to  suspect  the  insanity  of  the  insane 
party,  and  where  he  cannot  be  reinstated  in  his  former  rights 
and  possession  should  the  contract  now  be  held  invalid,  (e) 
The  ancient  doctrine  that  the  contract  of  a  hopelessly  insane 


§  36  STATUS    OF    INSANE   PERSONS.  41 

person  was  void  was  the  simpler  and  perhaps  the  better  one, 
leaving  both  parties  free  as  if  the  contract  never  had  been 
made. 

Read  (a)  15  D.  354,  note :  17  St.  686;  71  St.  418,  note. 
(ft)   118  U.  S.  127;  60  D.  313;  83  D.  514. 
(c)   55  D.  430 ;  45  D.  700. 
(rf)  89  D.  705 ;  39  D.  744;  15  Wall.  9;  22  D.  372;  1  R. 

309 ;  47  St.  463 ;  66  D.  414. 
0)  92  D.  428 ;  97  D.  592. 


§  36.  Of  the  Power  of  an  Insane  Person  to  make  a  Valid 
"Will. 
The  validity  of  the  last  will  and  testament  of  an  insane  per- 
son is  determined  by  the  same  method  as  that  of  his  contract. 
It  is  sometimes  said  that  it  requires  less  mental  capacity  to 
make  a  will  than  to  make  a  contract,  but  the  truth  of  this 
statement  depends  upon  the  comparative  intricacy  of  the 
contract  and  the  will  and  the  relations  of  their  respective  pro- 
visions to  the  peculiar  mental  disorders  of  the  maker.  Some 
wills  require  greater  mental  capacity  than  some  contracts  and 
some  contracts  are  more  difficult  to  comprehend  than  some 
wills,  while  both  wills  and  contracts  are  equally  liable  to  be 
without  or  within  the  influence  of  their  maker's  idiosyn- 
crasies. In  order  to  make  a  valid  will  it  is  necessary  that 
the  testator  should  be  able  to  understand  what  property  he 
owns,  to  whom  his  property  would  descend  if  he  made  no 
will,  to  whom  in  justice  and  in  obedience  to  the  dictates  of 
natural  affection  it  ought  to  go  at  his  death,  and  to  whom  it 
will  go  under  the  provisions  of  the  will  as  he  has  made  it, 
and  that  he  should  freely  determine  that  it  shall  go  to  the 
I  ersons  and  in  the  manner  expressed  in  the  will.  A  simple 
testament  distributing  property  among  immediate  relatives 
without  trusts  or  other  intricate  legal  limitations  obviously 
requires  very  little  mental  power  or  force  of  will  compared 
with  one  which  turns  the  current  of  descent  away  from  natural 
heirs  and  vests  the  estate  in  strangers  coupled  with  condi- 
tions and  obligations  whose  interpretation  taxes  the  wisdom 


42  AMERICAN    JURISPRUDENCE.  §  37 

and  sagacity  of  the  ablest  lawyers.  Here,  therefore,  as  in 
reference  to  contracts,  every  case  must  be  judged  by  itself, 
and  if  the  testator  at  the  time  he  made  the  will  in  question 
had  intelligence  enough  to  know  what  he  could  do,  what  he 
ought  to  do,  and  what  he  did  do  with  his  property,  and  really 
intended  to  do  with  it  what  he  has  done,  his  will  is  valid 
however  weak  his  mind  may  otherwise  have  been,  and  under 
whatever  insane  delusions  and  impulses,  not  affecting  him  in 
the  making  of  his  will,  he  may  have  labored,  (a)  This  de- 
scription of  the  capacity  requisite  to  make  a  valid  will  shows 
that  the  will  of  an  insane  person  is  invalid  when  he  is  wholly 
without  mental  powers  or  self-control,  or  when  the  nature  of 
its  provisions  is  such  that  he  could  not  have  comprehended 
it,  or  when  it  is  made  under  the  influence  of  some  general 
or  Special  delusion  or  in  obedience  to  an  impulse  at  once  un- 
reasonable and  irresistible  or  under  the  pressure  of  external 
conditions  which  perverted  his  judgment  or  exercised  such 
undue  control  over  his  testamentary  act  that  it  could  not  have 
been  entirely  voluntary,  (b) 

Read  (a)  17  D.  722;  50  D.  329  ;   51  D.  253 ;   14  R.  79  ;  36  R. 
422;  8  R.  181  ;  6  R.  703;  84  D.  220  ;  21  D.  732; 
63  St.  72,  note. 
(b)   16  D.  253;  19  I).  402. 


§  37.    Of  the  Liability  of  an  Insane  Person  for  his  Torts. 

An  insane  person  is  liable  for  the  injuries  which  he  commits 
against  the  persons  and  property  of  others  to  the  same  extent 
as  if  he  were  sane,  except  where  such  injuries  involve  a  men- 
tal operation  or  a  purpose  of  which  he  is  proved  to  be  incap- 
able. Notwithstanding  his  infirmities  of  mind  and  will  it  is 
only  just  that  other  persons  should  be  protected  against  or 
compensated  for  the  harmful  consequences  of  his  unlawful 
acts;  for  his  insanity  is  his  misfortune  not  theirs,  and  if  he 
cannot  control  his  conduct  he  has  no  legal  right  to  be  at  large. 
Infants  are  bound  by  equally  stringent  rules,  and  yet  their 
condition  is  natural  and  inevitable,  and  libert}^  is  necessary 
to  their  education  and  development,  while  insanity,  if  some- 


§  3*  STATUS   OF    INSANE   PERSONS.  43 

times  unavoidable,  is  at  the  least  unnatural,  and  when  com- 
bined  with  freedom  from  restraint  is  dangerous  alike  to  its 
victim  and  to  the  community.  Acts  whose  unlawfulness 
depends  Tii Min  the  intent  or  knowledge  with  which  they  are 
performed,  among  which  are  deceits,  conspiracies,  and  appro- 
priations  of  property  under  false  claims  of  ownership,  entail 
upon  him  no  responsibility  when  such  intent  or  knowledge 
is  beyond  his  powers,  for  in  the  absence  of  this  knowledge  or 
intent  the  wrong  itself  is  not  committed  even  by  a  sane  per- 
son, and  it  is  immaterial  whether  their  absence  is  due  to  the 
presence  of  opposite  ideas  and  purposes  or  to  simple  inca- 
pacity. The  negligence  of  an  insane  person  is  judged  by  the 
same  standards  as  that  of  other  persons,  unless  those  dealing 
with  him  and  suffering  through  his  negligence  had  notice  of 
his  want  of  understanding  or  his  lack  of  self-control,  for 
every  person  entering  into  relations  with  others  is  entitled 
to  assume  that  they  are  sane  and  to  expect  from  them  the 
care  and  diligence  which  sane  persons  are  required  to  exercise, 
and  unless  in  some  way  put  upon  his  guard  is  not  compelled 
to  investigate  their  mental  condition  before  placing  his 
person  or  property  within  their  power.  But  where  either  the 
negligence  or  the  wrongful  act  of  an  insane  "person  are  so 
connected  with  his  contract  as  to  constitute  its  violation  and 
the  contract  itself  is  one  which  he  had  not  the  capacity  to 
make,  lie  is  not  liable  for  the  act  or  the  neglect,  (a) 
Read  (a)  42  St.  713. 


§  38.    Of  the  Responsibility  of  an  Insane  Person  for  Crime. 

The  responsibility  of  an  insane  person  for  his  criminal 
acts  is  determined  by  the  same  comparison  between  his  actual 
mental  or  volitional  condition  at  the  time  the  act  was  com- 
mit ted  and  the  intents  and  purposes  which  are  essential  to  the 
perpetration  of  the- crime.  There  is,  as  has  beeo  already  ex- 
plained, no  crime  without  a  criminal  intent,  a  consent  of  the 
will  to  the  performance  of  a  known  unlawful  act.  This  re- 
quires that  the  criminal  should  have  mind  enough  to  be  able 
to  understand  the  nature  of  the  act  and  that   it  is  unlawful 


44  AMERICAN   JURISPRUDENCE.  §  38 

or  morally  wrong,  and  that  he  should  have  sufficient  self- 
control  to  be  able  to  refrain  from  doing  it.  The  law  presumes 
that  all  sane  persons  know  the  law  and  consequently  know 
when  they  commit  unlawful  acts,  and  intend  to  do  whatever 
they  actually  perform,  and  hence  imputes  the  criminal  intent 
to  every  voluntary  performer  of  the  act  who  has  capacity 
enough  to  comprehend  its  nature  as  prohibited  by  law.  But 
where  a  criminal  act  is  committed  when  the  mind  or  will  is  so 
weak  that  the  act  is  not  intelligent  and  voluntary,  or  when 
the  perpetrator  is  under  the  control  of  a  general  or  special 
delusion  which  so  far  perverts  his  apprehension  or  judgment 
that  he  does  not  comprehend  the  nature  and  consequences  of 
the  act  or  is  convinced  that  it  is  right  or  necessary,  or  when 
he  is  impelled  to  commit  the  act  by  an  irresistible  impulse 
in  spite  of  his  knowledge  and  consciousness  of  wrong,  the 
act  is  not  a  crime,  because  the  criminal  intent  without  which 
crime  is  impossible  does  not  exist.  (//)  What  has  been  said 
concerning  the  temporary  insanity  arising  from  voluntary 
drunkenness  should  be  here  repeated.  If  through  indulgence 
in  strong  drink  or  drugs  a  man  has  deprived  himself  of  intel- 
ligence and  free  will,  he  is  none  the  less  insane  and  unable  to 
understand  and  control  his  actions  than  if  his  insanity  had 
been  congenital  or  resulted  from  disease,  and  if  insanity  itself 
exempted  its  subjects  from  liability  for  crime  the  drunkard 
could  not  be  denied  the  benefit  of  the  exemption.  But  it  is 
the  law,  not  the  individual  or  his  .  condition,  which  deter- 
mines the  nature  of  crimes  and  who  shall  suffer  punishment 
for  them,  and  if  the  interests  of  society  demanded  that  insane 
persons  or  even  infants  should  be  held  to  the  full  measure  of 
responsibility  attached  to  sane  adults,  the  law  could  justly 
require  it.  The  law  does  not  assert  that  persons  insane 
through  drink  are  not  insane,  nor  that  they  understand  and 
will  the  acts  which  they  commit,  but  that  having  voluntarily 
put  themselves  into  this  condition  they  have,  in  advance, 
assumed  all  its  consequences  and  must  suffer  the  same  pen- 
alties as  if  their  acts  had  been  intelligently  and  purposely 
committed;  and  this  it  does  because  society  would  otherwise 
be  without  adequate  protection  against  the  dangers  to  which 


§  38         STATUS  OF  INSANE  PERSONS.  45 

the  presence  of  multitudes  of  irresponsible  drunkards  would 
subject  it.  But  where  the  reason  of  the  rule  ceases  the  law 
itself  ceases,  and  when  a  drunkard  through  long  self  abuse 
becomes  actually  and  permanently  insane  —  a  case  compara- 
tively rare  —  he  stands  before  the  law  precisely  like  any  other 
insane  person,  (b)  In  reference  to  the  specific  intent  which 
is  in  some  crimes  an  essential  part  of  the  criminal  act,  the 
question  is  always  open,  both  as  to  voluntary  drunkards  and 
all  other  persons,  whether  the  external  action  or  omission 
was  coupled  with  the  particular  intent  or  purpose  which  makes 
the  omission  or  the  act  a  criminal  act;  and  on  this  question 
the  mental  capacity  of  the  accused  to  entertain  and  act  upon 
the  purpose  or  intent  is  the  principal  matter  for  investigation, 
since  if  incapable  of  conceiving  this  particular  design,  or  of 
purposing  to  accomplish  it  by  means  of  this  particular  ex- 
ternal action,  the  required  specific  intent  could  not  exist  and 
consequently  the  criminal  act  could  not  be  committed,  (c)  In 
criminal  cases  especially  the  general  presumption  of  sanity 
must  be  overcome  bj'  reliable  and  preponderating  evidence. 
It  is  the  duty  of  the  accused  to  offer  testimony  sufficient  to 
show  that  he  was  probably  insane  when  the  act  was  per- 
formed, and  the  interests  of  society  require  that  he  should 
escape  punishment  only  when  there  is  a  reasonable  doubt 
whether  he  was  mentally  and  morally  capable  of  the  crime,  (d) 
When  acquitted  on  the  ground  of  insanity  he  is  by  the  laws 
of  some  States,  and  ought  to  be  by  the  laws  of  all,  subjected 
to  such  restraints  as  would  effectually  protect  the  community 
against  further  repetitions  of  his  irresponsible  acts.  An 
insane  person  while  insane,  cannot  be  tried  or  punished,  and 
proceedings  against  him,  though  commenced,  must  be  sus- 
pended until  his  recovery,  (e) 

Read  4  Bl.  Com.,  pp.  24-20. 

(a)  97  1).  162,  note;  99  D.  634;  36  D.  398,  note;  41  D. 

458;  83  D.  231 ;  31  11.  300;  60  R.  193,  note. 
(6)  40  R.  556,  note;  72  D.  484;  37  St.  811;  20  R.  292, 

43  R.  799. 
(c)  45  D.  558;  36  R.  13;  26  St.  44. 
00  69  I).  642:  80  D.  154;  160  U.  S.  469. 
(c)  47  1).  216. 


•16  AMERICAN    JURISPRUDENCE.  §§  39,  40 

§  39.    Of  the  Standing  of  an  Insane  Person  in  the  Courts. 

An  insane  person,  not  under  legal  guardianship,  may  sue 
and  be  sued  like  any  other  person  in  actions  for  private  in- 
juries, and  will  be  bound  by  the  judgment  of  the  court  if  he 
has  appeared  in  the  case  and  has  had  an  opportunity  to  be 
heard,  (a)  Where  legal  proceedings  instituted  by  him  neces- 
sitate contracts,  or  where  compliance  with  the  orders  of  the 
court  would  place  him  under  contract  obligations,  the  validity 
of  these  must  be  determined  by  his  capacity  to  enter  into 
them;  and  if  he  is  unable  to  make  them,  and  the  litigation 
cannot  be  carried  on  without  them,  it  must  cease,  or  a  guar- 
dian must  be  appointed  for  him  by  whom  it  may  be  conducted. 
Where  an  insane  person  is  a  defendant,  and  manifestly  in- 
capable of  protecting  his  own  interests,  the  court  will  inter- 
fere and  provide  him  with  a  suitable  attorney,  (b)  An  insane 
person  may  testify  as  a  witness  in  a  lucid  interval,  or  when 
he  understands  the  obligation  of  an  oath,  can  comprehend  the 
questions  put  to  him  and  can  state  correctly  what  he  has  seen 
and  heard;  and  of  these  qualifications  the  court  in  every 
instance  is  the  judge,  (c) 

Read  (a)  54  D.  614 ;  32  D.  68 ;  74  D.  503. 

(b)  79  D.  67. 

(c)  107  U.  S.  519. 


§  40.    Of  the  Guardianship  of  Insane  Persons. 

An  insane  person  is  always  regarded  as  the  ward  of  the 
State,  which  exercises  supervision  over  him,  when  it  deems 
best,  through  courts  of  equity  or  statutory  courts  endowed 
with  equity  powers,  by  whom  a  guardian  is  appointed  for  him 
to  take  custody  of  and  have  control  over  his  person  or  his  prop- 
erty or  both,  as  the  necessities  of  the  case  require.  (a)  Pre- 
liminary to  the  exercise  of  this  supervision  the  presumption 
of  sanity  must  be  overcome  by  an  investigation  of  his  mental 
condition.  On  the  application  of  the  insane  person  himself, 
or  of  any  one  who  may  be  interested  in  him,  a  commission  of 
lunacy  issues  from  the  court  to  certain  individuals  to  ascer- 
tain by  evidence  or  otherwise  the  state  of  his  intellect  and 


§  40  STATUS    OF    INSANE    PERSONS.  47 

will  and  report  the  result  of  their  researches  to  the  court. 
In  some  States,  under  their  local  practice,  this  examination 
is  conducted  directly  by  the  court.  If  the  person  is  found  to 
be  insane  the  court  makes  such  a  disposition  of  him  and  his 
estate  as  his  interests  and  those  of  society  demand.  He  may 
be  committed  to  an  asylum  where  he  will  be  kept  under  re- 
straint, or  permitted  to  go  at  large  under  such  oversight  as  the 
guardian  now  appointed  for  him  may  be  directed  to  give,  (b) 
His  property  may  be  taken  out  of  his  control  and  entrusted  to 
his  guardian  to  manage  for  his  benefit,  or  he  may  be  allowed 
to  keep  and  use  it  subject  to  the  prohibitions  of  his  guardian. 
He  may  be  entirely  deprived  of  all  contracting  power  so  that 
his  apparent  contracts  will  be  wholly  void,  or  he  may  be  per- 
mitted to  make  contracts  which  become  valid  by  the  ratifica- 
tion of  his  guardian,  (c)  In  short,  whatever  restrictions  the 
court  from  time  to  time  thinks  necessary  for  his  welfare  may 
be  placed  upon  his  liberty  and  modified  or  removed  as  his 
capacity  to  take  care  of  himself  and  his  estate  diminishes  or 
improves.  This  power  to  appoint  guardians  for  insane  per- 
sons, which  has  for  centuries  been  vested  in  equity  courts,  is 
now  commonly  extended  by  statute  to  reach  spendthrifts, 
habitual  drunkards,  and  all  other  species  of  "  incapables," 
who  for  this  purpose  are  classed  with  the  insane.  While 
under  guardianship  the  personality  of  the  insane  person  is 
superseded  by  that  of  the  guardian  according  to  the  scope  of 
the  guardian's  powers,  and  he  can  do  nothing  of  himself  within 
the  field  allotted  to  his  guardian.  When  the  guardian  takes 
possession  of  the  ward's  estate  he  must  support  him  from  it 
so  far  as  may  be  possible  and  necessary,  and  after  his  death 
or  restoration  to  complete  capacity  must  account  to  him  or 
his  legal  representatives  for  whatever  balance  may  remain 
unexpended   in  his  hands. 

Head  (a)  15  St.  386;  G  St.  913;  44  St.  258;  46  D.  280;  77  D, 
572. 

(b)  1  K.  334. 

(c)  68  D.  4G5 ;  22  D.  655. 


48  AMERICAN   JURISPRUDENCE.  §  41 

Article  IV. 
Of  the  Status  of  Married  Women. 

§  41.    Of  the  Legal  Character  and  Validity  of  Marriage. 

A  third  form  of  abnormal  status  is  that  of  Femes  Covert,  or 
Married  Women.  The  marital  relation,  as  regarded  by  the 
law,  is  an  institution  based  on  public  policy,  established  by 
the  laws  of  the  State,  and  subject  both  as  to  its  formation 
and  destruction  to  State  control.  It  consists  in  the  voluntary 
union  of  a  man  and  a  woman  for  all  the  purposes  embraced  in 
the  legal  conception  of  marriage.  It  is  created  by  the  consent 
of  the  parties  to  be  now  and  hereafter  husband  and  wife  (a) ; 
but  is  dissoluble  only  by  death  or  by  the  action  of  the  State, 
which  can  terminate  the  relation,  with  or  without  cause,  at 
its  pleasure,  (b)  No  ceremonies  are  necessary  to  its  validity 
unless  expressly  made  so  by  statute  (c),  and  if  valid  by  the  laws 
of  the  State  where  it  is  created  it  is  valid  in  all  other  States 
except  when  contrary  to  their  settled  public  policy  or  to  their 
standards  of  morality,  (d)  Marriage,  in  legal  contemplation, 
is  therefore  not  a  mere  ecclesiastical  ceremony  entailing  the 
observance  of  religious  duties,  nor  a  mere  contract  the  terms 
of  which  the  parties  are  competent  to  fix,  nor  a  combination 
of  the  two,  but  a  true  change  of  status  after  which  the  female 
party  at  least  occupies  an  entirely  different  position  before 
the  law.  (e)  Variations  in  this  status  may  be  caused  by  the 
legal  separation  of  the  parties  or  by  their  divorce  a  mensa  et 
thoro.  By  death  or  divorce  a  vinculo  the  status  itself  is  de- 
stroyed, and  the  normal  status  of  both  parties,  or  of  the  sur- 
vivor, is  restored.  (/) 

Read  1  Bl.  Com.,  pp.  433-442  ;  2  Kent,  Lect.  xxvi,  pp.  75-93; 
Holland,  Ch.  xii.  pp.  216,  217. 
(a)  22  D.  563;  53  D.  164. 
(ft)  20  D.  402  (407,  408) ;  48  St.  928. 

(c)  2  St.  105. 

(d)  10  St.  648. 

(e)  125  U.  S.  190 ;  58  D.  59 ;  85  D.  658. 
(J)  65  D.  349,  note. 


§  42  STATUS    OF   MARRIED    WOMEN.  49 

§  42     Of   the  Status  of    Married  Women    under    our    Ancient 
Laws 

Under  the  ancient  rules  of  the  common  law  the  status  of 
married  women  departed  more  widely  from  a  normal  status 
than  that  of  any  other  class  of  persons.  In  fact,  even  her 
personality  itself  was  suspended  and  merged  during  the 
coverture  in  that  of  her  husband,  with  whom  she  became  in 
law  one  person  and  that  person  the  husband,  («)  As  a  conse- 
quence of  this  her  husband  acquired  the  control  over  all  her 
acts  and  might  even  by  force  compel  her  obedience,  (b)  She 
was  obliged  to  follow  him  in  his  various  changes  of  abode, 
and  could  not  acquire  a  legal  residence  of  her  own  unless  de- 
serted by  him  or  for  the  purpose  of  seeking  a  divorce  or  al- 
ready separated  from  him  by  the  intervention  of  the-courts.  (c) 
Contracts  subsisting  between  them  at  the  time  of  the  marriage 
became  null  and  void  (d) ;  no  new  legal  contracts  were  possible 
between  them  while  the  marital  relation  lasted  except  through 
third  persons  as  trustees;  nor  could  the  wife  contract  with 
any  other  person  unless  abandoned  by  her  husband  and  thus 
restored  to  the  legal  capabilities  of  a  feme  sole,  (e)  All  her 
personal  property  which  she  had  in  her  possession  at  the 
date  of  the  marriage  instantly  became  the  property  of  the 
husband,  and  all  her  claims  and  rights  of  action  against 
others  vested  in  him  to  be  collected  by  him  and  applied  to 
his  own  use  if  he  chose.  (/)  Her  temporary  interests  in 
lands,  the  rents  and  profits  of  her  real  estate  (g),  and  all  her 
services  and  earnings  while  she  was  his  wife  (A),  were  also 
his,  and  if  they  owned  joint  property  the  dominion  over  it 
resided  in  him  during  his  life  or  until  the  marriage  relation 
was  legally  dissolved.  (i)  Moreover,  the  merging  of  her  per- 
sonality in  that  of  her  husband  delivered  her  from  many  of 
the  legal  responsibilities  of  a  person  and  imposed  them  upon 
him.  By  the  marriage  he  became  liable  for  all  her  ante- 
nuptial debts  (J),  for  her  adequate  support  according  to  her 
station  in  life  (k),  for  all  her  private  injuries  to  the  persons, 
character  and  property  of  others  (/),  and  for  all  the  crimes 
which  she  committed  in  his  presence  and  by  his  command 
except  treason,  robbery,  and  murder,  (m)     She  had  no  stand- 

4 


50  AMERICAN   JURISPRUDENCE.  §  43 

ing  in  the  courts  apart  from  him,  and  could  neither  sue  nor 
be  sued  without  making  him  a  party  except  in  her  own  ac- 
tions against  him  for  a  separation  or  divorce,  (n)  Commu- 
nications between  them  were  considered  sacred,  and  neither 
could  be  compelled  to  divulge  them  even  under  the  sanction 
of  an  oath,  (o) 

Read  1  Bl.  Cora.,  pp.  442,445;  2  Bl.  Com.,  pp.  433-436; 
2  Kent,  Lect.  xxviii,  pp.  129-162,  179-187; 
Walker,  Lect.  xiv. 

(a)  56  D.  288. 

(b)  86  D.  430,  note;  98  D.  78. 

(c)  76  D.  440 ;  21  How.  582 ;  23  D.  549. 
(<!)  53  D.  236. 

(e)   45  D.  171 ;   64  St.  854,  note. 

(/)  79  D.  73;  47  D.  120  ;  82  D.  144  ;  83  D.  351. 

(y)  31  D.  257. 

(A)  13  St.  847;  39  D.  623;  73  D.  323. 

(/)    10  St.  94  ;  26  St.  475 ;  38  St.  430. 

(J)  60  D.  258;  98  D.  587. 

(*)  33  St.  917;  28  St.  362;  10  D.  458;  66  D.  137. 

(0  37  St.  374. 

(m)  6  D.  105,  note;  8  R.  422;  94  D.  684. 

(n)  15  D.  673 ;  66  D.  137 ;  47  R.  112. 

(o)  29  St.  405. 


§  43.    Of  the    Status   of   Married   'Women   under   our   Present 
Laws. 

^n  more  recent  times,  however,  these  exemptions  and  disa- 
bilities which  once  attached  to  the  status  of  married  women 
cave  been  variously  modified,  both  by  the  action  of  courts  of 
pquity  and  by  legislative  enactment.  The  principal  spheres 
of  influence  of  courts  of  equity  have  been  the  separate  estates 
of  married  women,  and  beneficial  contracts  between  them  and 
their  husbands.  Instances  occasionally  arose  where  property 
became  vested  in  a  wife  under  express  conditions  which  ex- 
cluded her  husband  from  any  interest  in  it  or  control  over  it, 
and  as  it  then  could  have  no  owner  or  personal  representa- 
tive except  the  wife,  the  courts  of  equity  took  notice  of  her 


§  43  STATUS   OF   MARRIED    WOMEN.  51 

relation  to  it  (as  the  courts  of  law  could  not  do)  and  sustained 
her  claims  and  contracts  in  regard  to  it  as  if  she  were  still 
single  and  unmarried.  («)  Beneficial  contracts  between  mar- 
ried persons  as  to  their  separation  when  it  became  no  longer 
possible  to  live  peaceably  together  (b),  or  as  to  transfers  of 
property  from  one  to  the  other,  though  void  at  law,  were  also 
recognized  and  enforced  in  equity  as  if  made  between  parties 
having  no  legal  disabilities  in  reference  to  one  another.  (V) 
The  changes  introduced  by  statute  have  been  still  more  exten- 
sive. Modern  ideas  as  to  the  mental  capacity  of  woman,  as 
to  the  character  of  the  marital  relation,  and  as  to  the  true 
interests  of  the  parties  to  it — ideas  largely  resulting  from 
changes  in  economic  conditions  and  the  consequent  ability  of 
woman  to  dispense  with  the  support  of  man  —  have  led  to  the 
adoption  of  statutes  which  are  inconsistent  with  the  theory 
that  the  personality  of  the  wife  is  merged  in  that  of  the  hus- 
band, and  which  recognize  in  her  a  greater  or  less  degree  of 
self-control  and  individual  responsibility.  But  not  in  all 
States  under  the  jurisdiction  of  the  common  law  have  these 
statutory  modifications  of  the  earlier  rules  been  identical.  In 
some,  they  seem  to  tend  toward  the  complete  severance  of  the 
wife's  personality  from  that  of  the  husband  and  the  entire 
emancipation  of  her  property  as  well  as  her  person  from  his 
protection  and  authority.  In  others,  the  law  has  been  changed 
only  in  reference  to  such  details  of  her  rights  and  duties  as 
the  conditions  of  modern  society  imperatively  require.  Thus 
each  State  has  its  own  system  of  laws  governing  married 
women,  and  sometimes  different  systems  applied  to  parties 
married  before  or  after  certain  dates,  and  sometimes  different 
systems  under  any  one  of  which  the  parties  may  elect  to  live. 
Resemblances  between  these  systems  indeed  exist  not  only  in 
the  ancient  rules  which  they  still  retain,  but  in  the  provisions 
which  render  married  women  responsible  for  their  own  torts 
and  crimes  (d),  or  release  their  husbands  from  their  ante- 
nuptial debts,  or  make  them  the  owners  under  certain  limita- 
tions of  their  real  and  personal  property  (e),  or  recognize  in 
them  a  measure  of  contracting  power.  </)  Hut  for  an  accu- 
rate knowledge  of  any  of  these  systems  as  applied  to  married 


52  AMERICAN   JURISPRUDENCE.  §  44 

persons  the  student  must  resort  to  the  Constitution,  statutes 
and  decisions  of  the  State  in  which  they  have  their  legal 
residence  or  domicile,  (y) 

Read  2  Kent,  Lect.  xxviii.  pp.  162-178. 

(a)  5  R.  675;  78  D.  216,  note;  99  D.  587,  note. 

(b)  90  D.  358. 

(c)  11  D.  396;   57  D.  583;  4  R.  631;    9  R.  679;  32  D. 

362  ;  9  St.  319  ;  88  D.  49  ;  101  U.  S.  225;  111  U  S. 
117;  58  St.  490,  note. 

(d)  46  St.  122 ;  83  D.  772,  note.. 

(e)  76  D.  363,  note ;  57  D.  330. 

(/)  13  St.  273 ;  99  D.  587,  note  ;  57  St.  163,  note. 
(g)  33  D.  168. 


Article  V. 
Of  the  Status  of  Persons  under  Coercion  or  Duress. 

§  44.    Of  the  Nature  of  Coercion  and  Duress. 

The  status  of  persons  under  coercion  or  duress  is  also 
abnormal.  One  whose  freedom  of  action  is  entirely  destroyed 
by  external  physical  coercion  is  no  longer  a  person.  His 
power  of  self-determination  is  lost  though  he  may  still  pos- 
sess a  sound  intellect  and  undiminished  will.  He  has  be- 
come a  mere  passive  instrument  in  the  hands  of  others  and 
his  apparent  acts  are  theirs,  not  his.  In  such  a  situation  a 
person  has  no  duties  or  responsibilities  and  is  not  amenable 
to  law.  Coercion  operates  upon  the  body;  duress,  on  the 
other  hand,  operates  upon  the  mind,  (a)  It  consists  in  an 
unlawful  constraint  of  the  will,  produced  by  the  conduct  of 
other  persons,  and  impelling  the  party  under  duress  to  act  as 
he  otherwise  would  not  act.  (b)  It  always  involves  wrong  and 
injustice  toward  the  person  constrained,  and  to  the  extent  to 
which  he  is  influenced  by  the  constraint  it  changes  his  ordi- 
nary legal  rights  and  obligations.  Duress  may  be  effected  by 
words,  actions,  or  conditions.  Threats  (c),  menaces,  false  im- 
prisonment (d),  bodily  privation  or  torture,  circumstances 
naturally  creating  fear  and  terror,  even  the  unlawful  forcible 


§  45  STATUS   OF   PERSONS    UNDER   DURESS.  53 

withholding  of  property  (e),  tend  to  this  result,  and  in  deter- 
mining the  degree  to  which  they  deprive  their  victim  of  his 
freedom,  his  own  vigor  of  mind  and  strength  of  will  must 
be  considered.  Conditions  which  in  one  person  would  excite 
grave  apprehensions  of  immediate  danger  will  be  met  by  an- 
other with  careless  defiance,  and  the  question  therefore  always 
is  a  personal  one  and  one  relating  to  a  particular  occasion.  (/) 
An  individual  of  weak  mind,  or  of  extreme  youth  or  age,  or 
dependent  upon  the  constraining  parties  for  protection  or 
support,  or  under  lawful  subjection  to  their  authority  as  to 
his  general  conduct,  is  necessarily  more  easily  controlled 
than  one  in  an  entirely  opposite  condition;  and  in  the  case  of 
any  person  less  constraint  is  needed  to  induce  an  act  of  little 
consequence  than  one  of  greater  importance  or  enormity. 
Lawful  constraint  of  one  person  by  another  is  never  duress 
although  its  exercise  may  bring  the  subject-party  into  such 
habitual  fear  of  or  dependence  on  the  other  that  a  slight  un- 
lawful usurpation  of  control  may  produce  a  duress  far  more 
intense  than  if  the  previous  relations  had  not  subsisted.  At 
the  same  time,  the  law  expects  every  one  to  assert  such  man- 
hood as  he  has,  and  not  to  yield  to  influences  which,  in  view 
of  his  mental  and  moral  state,  he  is  evidently  able  to  resist. 

Read  1  Bl.  Com.,  130,  131  ;    Holland,  Ch.  viii,  p.  94;   Ch.  xii, 
p.  239     Markby,  §§  254-256,  758-763. 

(a)  5  D.  659. 

(b)  49  D.  596. 

(c)  82  D.  395. 

(d)  26  D.  370,  note;  4  D.  170;  29  St.  170. 
(f)  45  I).  145,  note. 

(J)  24  St.  166. 


§  45.  Of  the  Liability  of  Persons  under  Duress  on  their  Con- 
tracts or  for  their  Crimes. 
The  principal  instances  in  which  these  rules  concerning 
duress  are  applied  relate  to  contracts,  to  transfers  of  property, 
and  to  crimes.  A  contract  entered  into  by  a  person  under  the 
fear  of  immediate  death  or  serious  injury  to  himself,  his  wife, 


£>4    .  AMERICAN   JURISPRUDENCE.  §  45 

his  children  or  his  property,  produced  by  the  unlawful  con- 
duct of  the  other  parties  to  the  contract,  is  voidable  (a) ;  and 
though  it  can  be  ratified  by  its  maker  after  he  is  released 
from  the  duress,  it  cannot,  until  ratified,  be  enforced  against 
him  either  in  the  courts  of  law  or  courts  of  equity,  (b)  A 
deed  given  under  similar  circumstances  is  likewise  void- 
able (c),  and  money  extorted  by  such  duress  may  be  recovered 
in  a  suit  at  law.  Contracts  between  persons,  one  of  whom  oc- 
cupies toward  the  other  an  artificial  dependent  relation,  such 
as  that  of  a  ward  to  his  guardian  or  of  a  cestui  que  trust  to  his 
trustee,  are  always  open  to  the  suspicion  of  duress,  and  if 
duress  is  proved,  and  was  sufficiently  severe  to  compel  the 
person  to  act  against  his  will,  the  contract  is  not  binding 
upon  him.  (d)  A  will  made  under  duress  is  void;  and  where 
a  testator  is  infirm  in  mind  or  body,  and  dependent  on  the 
services  of  his  beneficiaries,  a  comparatively  small  degree  of 
influence  on  their  part  in  their  own  favor  constitutes  duress 
enough  to  make  the  will  invalid,  (e)  In  accepting  duress  as 
an  excuse  for  criminal  acts  the  law  rules  the  more  stringently 
in  proportion  to  the  enormity  of  the  offence  committed  and  its 
natural  effect  upon  the  welfare  of  society.  ISTo  duress  can  ex- 
cuse an  act  of  treason  unless  the  act  was  perpetrated  under  a 
reasonable  and  well  grounded  fear  of  immediate  death  at  the 
hands  of  the  enemy  in  case  of  refusal.  (/)  Duress  excuses 
voluntary  homicide  only  when  the  unlawful  conduct  of  the 
victim  produces  in  the  slayer  an  honest  conviction  that  his  act 
of  homicide  affords  him  the  sole  means  of  preventing  the  im- 
pending death  or  serious  mutilation  of  himself  or  members  of 
his  family,  or  the  felonious  destruction  of  his  property.  (//) 
Crimes  of  less  moment  may  be  overlooked  although  the  mental 
disturbance  and  moral  constraint  fall  short  of  the  intensity 
required  in  treason  and  homicide,  and  though  the  constraint 
proceeds  from  parties  who  are  not  to  suffer  but  to  profit  by 
the  crime,  as,  for  example,  where  a  wife  commits  a  criminal 
act  in  the  presence  and  under  the  influence  of  her  husband,  (h) 
But  constraint  arising  out  of  circumstances  which  occur  in 
the  natural  course  of  events,  and  not  due  to  the  unlawful  con- 
duct of  others,  is  not  such  duress  as  justifies  a  criminal  act.  (/J 


§  46  STATUS    OF    PUBLIC    OFFICERS.  55 

Thus  poverty,  however  extreme,  does  not  excuse  a  theft,  nor 
danger  in  shipwreck  warrant  the  sacrifice  of  other  lives  to 
save  one's  own.  In  all  cases  of  alleged  coercion  or  duress  the 
law,  moreover,  subjects  the  situation  of  the  party  claiming 
it  to  careful  scrutiny,  and  allows  his  claim  only  when  the  fact 
that  he  was  compelled  to  act  against  his  will  is  clearly 
proved. 

Read  4  Bl.  Com.,  pp.  27-32. 

(a)  81  D.  597;  1  D.  643;  19  R.  695. 

(6)  98  D.  432. 

(c)  7  Wall.  205. 

(</)  25  R.  718;  100  D.  314. 

(<0  51  D.  649. 

(/)  2  Dall.  86. 

(<7)  71  D.  370;   100  D.  173. 

(*)  31  R.  331  ;  33  St.  114;  33  St.  88,  note. 

(i)    7  Cranch,  218. 


Article  VI. 

Of  the  Status  of  Public  Officers. 

§  46.    Of  the  Nature  of  Public  Office. 

A.  fifth  class  of  persons  occupying  an  abnormal  status  is 
that  of  public  officers.  Public  office  is  a  continuing  charge, 
occupation,  station,  or  employment,  created  by  the  State  for 
the  benefit  of  the  public,  and  conferred  by  the  act  of  the 
sovereign  upon  a  person  or  a  group  of  persons  whose  official 
duties  and  privileges  are  defined  by  law.  It  is  not  a  con- 
tract to  which  the  State  and  the  officer  are  parties,  though 
many  of  its  features  have  a  contract  aspect,  but  a  specific 
legal  condition  into  which  the  incumbent  enters  and  from 
which  he  departs,  having  no  power  over  its  rights  and  obliga- 
tions except  to  bring  himself  into  or  remove  himself  from  a 
personal  relation  to  them.  All  public  offices  are  methods  or 
instrumentalities  through  which  the  functions  of  sovereign  v 
are  discharged  by  the  State;  and  inasmuch  as  the  exercise  of 
these  functions  is  in  the  nature  of  things  to  some  extent  in- 


56  AMERICAN    JURISPRUDENCE.  §  47 

compatible  with  complete  obedience  to  the  general  rules  of 
law,  to  that  extent  every  public  officer  is  exempt  from  the 
authority  of  those  general  rules  and  is  governed  by  special 
rules  appropriate  to  his  office,  and  so  far  differs  in  status  from 
the  ordinary  citizen,  (a)  Eligibility  to  office  equally  with 
other  persons  of  the  same  status  with  himself  is  one  of  the 
political  rights  embraced  in  citizenship,  (b) 

Head  2  Bl.  Coin.,  pp.  3G,  37. 

(a)  8  11.  488;  63  St.  174,  note. 

(b)  15  D,  322. 


§  47.    Of  the  Incidents  of  Public  Office. 

Public  office  comprises  the  elements  of  term,  tenure,  duties, 
and  emoluments;  term,  the  period  of  its  duration;  tenure,  the 
conditions  on  which  it  is  conferred;  duties  to  be  performed; 
emoluments  to  be  received,  (a)  It  is  held  at  the  will  of  either 
party  unless  a  different  term  is  expressed  or  is  implied  from 
the  provisions  of  the  law,  from  the  nature  of  the  office,  or  from 
ancient  usage.  It  becomes  vacant  by  the  expiration  of  the 
term  prescribed  by  law,  by  the  death  or  resignation  of  the 
incumbent,  or  upon  his  removal  by  the  sovereign.  A  resig- 
nation may  be  made  by  acts  or  words  but  must  be  accepted 
before  it  can  take  effect,  (b)  The  power  to  remove  an  officer 
is  incidental  to  the  power  ta  appoint  him,  and  no  pledge  or 
promise  that  the  State  may  make  to  him,  and  no  act  of  general 
or  special  legislation,  can  deprive  it  of  the  right  to  exercise 
this  power  whenever  the  public  good  requires  it.  In  the 
absence  of  specific  legal  restrictions  an  officer  may  be  removed 
by  the  appointing  authority  at  any  time  and  in  any  manner, 
with  or  without  cause  and  with  or  without  notice.  When  he 
is  removable  only  for  cause,  the  existence  of  the  cause  must 
first  be  established  by  judicial  investigation.  The  tenure 
of  an  office  cannot  be  changed  during  the  term  unless  the 
change  is  demanded  by  the  interests  of  the  public  and  the 
office  is  neither  lucrative  nor  honorary;  but  the  rights  and 
duties  of  the  officer  may  be  extended  or  constricted  at  the 
pleasure  of  the  State  and  his  compensation,  although  already 


§  48  STATUS    OF   PUBLIC    OFFICERS.  57 

definitely  fixed  by  law,  may  be  increased  or  diminished  by 
the  legislature  without  his  consent,  or  his  office  may  be  abol- 
ished altogether,  (c)  A  public  office  may  be  forfeited  by  the 
refusal  of  the  appointee  to  accept  it,  or  by  his  non-user  or 
misuser  of  the  authority  which  it  confers,  (d)  Two  or  more 
offices  may  vest  in  the  same  person  if  their  respective  duties 
are  not  incompatible.  ('') 

Read  (a)  6  Wall.  385  (393). 

(b)  41  R.  418. 

(c)  13  Pet.  230  (259);  25  D.  077,  note  ;  10  How.  402;  134 

U.  S.  99  ;  7  R.  87  ;  41  St.  606  ;  39  D.  187;  64  D. 
680  ;  43  D.  740. 

(d)  83  D.  367,  note. 

(e)  130  U.  S.  439  (451). 


§  48.    Of  Public  Officers. 

The  class  of  public  officers  includes  all  persons  and  groups 
of  persons  exercising  executive,  judicial,  or  legislative  powers, 
all  persons  engaged  in  the  diplomatic  or  administrative  ser- 
vice of  the  State,  and  all  the  regularly  commissioned  or  en- 
listed members  of  its  naval  and  military  forces.  A  person 
contracting  with  the  State  to  discharge  duties  of  a  private 
character  does  not  thereby  become  an  officer,  nor  does  the  pres- 
ence of  contract  aspects  in  the  relations  of  an  officer  to  the 
State  render  him  any  the  less  a  public  functionary,  (a)  Thus 
an  architect  employed  to  design  public  buildings,  a  teamster 
hired  to  transport  military  supplies,  do  not  by  reason  of  their 
occupations  become  public  officers,  while  common  soldiers  by 
the  act  of  enlistment  obtain  an  official  character  and  status, 
although  by  the  same  act  they  make  a  contract  with  the  State 
to  serve  it  in  a  certain  manner  for  a  specified  amount  of 
wages.  (!>)  In  number  and  variety  these  public  offices  and 
their  incumbents  are  almost  beyond  computation  and  descrip- 
tion, and  every  one  of  them  has  its  own  body  of  rules  by 
which  the  privileges  and  duties  attached  to  that  particular 
office  are  defined.  Nevertheless,  official  status,  as  such,  has 
certain  general  characteristics  and  distinctions  in  which  the 


58  AMERICAN   JURISPRUDENCE.  §  49 

principles  underlying  all  these  various  rules  have  been  em- 
bodied and  expressed.  A  brief  examination  of  these  will 
furnish  the  student  with  sufficient  tests  by  which  in  any 
given  case  the  scope  of  the  official  status,  the  validity  of 
official  acts,  and  the  exemption  or  the  officer  from  the  opera- 
tion of  the  general  rules  of  law,  may  be  determined. 
Read  (a)  99  U.  S.  508 ;  103  U.  S.  5 ;  72  D.  169,  note 
(/,)  137  U.  S.  147. 


§  49.    Of  Officers  de  Jure  and  Officers  de  Facto. 

Public  officers  are  either  officers  de  jure  or  officers  de  facto. 
An  officer  de  jure  is  one  who  has  been  in  all  respects  legally 
elected  or  appointed,  and  who  has  duly  qualified  by  taking 
the  official  oath,  filing  the  official  bond,  and  performing  all 
the  other  prerequisites  to  the  assumption  of  his  official 
duties,  (a)  An  officer  de  facto  is  one  who,  having  been  appar- 
ently though  not  actually  appointed  or  elected  and  qualified 
in  strict  accordance  with  the  law,  is  recognized  by  the  public 
as  an  officer  and,  under  color  of  his  apparent  appointment  or 
election,  performs  official  acts  in  the  customary  manner,  (b) 
A  person  duly  elected  or  appointed  to  an  office,  but  who  never 
qualifies  or  acts,  is  not  an  officer  at  all.  A  mere  usurper, 
discharging  official  duties  without  color  of  an  appointment  or 
election,  is  not  an  officer — not  even  a  de  facto  officer,  (c) 
The  law  presumes  that  all  persons  exercising  official  functions 
under  color  of  a  lawful  election  or  appointment  are  officers 
de  jure,  and  though  it  permits  either  the  State  or  the  true 
incumbent  to  attack  the  official  character  of  an  officer  de  facto, 
it  does  not  impose  upon  the  general  public  nor  upon  private 
parties  the  task  of  ascertaining  the  legality  of  his  appoint- 
ment or  election  before  they  can  safely  avail  themselves  of  his 
official  services,  (d)  Thus  the  acts  of  a  de  facto  officer  are 
valid  so  far  as  they  affect  public  or  private  interests,  although 
he  cannot  collect  compensation  from  the  State  for  public  ser- 
vices nor  withhold  from  the  true  incumbent  such  remuneration 
as  he  may  already  have  received.  (<•)  The  title  of  an  officer  to 
the  office  which  he  holds  is  tried  in  a  proceeding  known  as  a 


§  50  STATUS   OF   PUBLIC    OFFICERS.  50 

Quo  Warranto,  brought  b}'  the  State  in  its  own  name,  either 
of  its  own  motion  or  on  the  relation  of  some  public  or  private 
person.  (/) 

Read  (a)  44  D.  574  ;  :3  St.  170. 

(b)  19  D.  61,  note;  9  R.  409. 

(c)  24  St.  276. 

(,/)  10  St.  357  ;  37  St.  478,  note. 

(e)  10  St.  280  ;    8  St.  17;  28  St.  163. 

(/)  45  D.  355  ;  30  D.  33,  note ;  171  U.  S.  366. 


§  50.    Of  Ministerial  Officers  and  Judicial  Officers. 

The  duties  of  public  officers  are  either  ministerial  or  judi- 
cial, (a)  A  ministerial  duty  is  one  which  must  be  performed 
in  a  prescribed  manner,  without  any  exercise  of  choice  or 
discretion  on  the  part  of  the  officer.  A  judicial  duty  is  one 
which  either  as  to  the  fact  of  its  performance  or  as  to  the  mode 
of  its  performance  is  entrusted  to  the  judgment  of  the  officer. 
Duties  of  both  these  kinds  are  connected  with  almost  every 
office,  and  consequently  officers  purely  ministerial  or  purely 
judicial  are  rarely  found.  .Many  details  of  acts,  which  as 
a  whole  are  ministerial,  are  also  necessarily  left  to  the  dis- 
cretion of  the  officer,  simply  because  the  law  cannot  foresee 
all  the  circumstances  which  may  attend  future  official  acts 
and  formulate  rules  to  meet  every  possible  emergencj*.  As 
the  authority  and  liability  of  an  officer  for  his  judicial  acts 
are  very  different  from  his  authority  and  liability  for  minis- 
terial acts,  whenever  the  question  arises  as  to  the  lawfulness 
of  official  action  the  first  inquiry  is  directed  to  this  distinc- 
tion; and  if  the  act,  or  thai  part  of  it  whose  legality  is 
doubted,  were  ministerial  its  lawfulness  is  measured  by  one 
standard,  and  if  it  were  judicial  by  another.  If  the  act  were 
ministerial  and  the  officer  has  departed  in  any  particular  from 
the  specific  directions  given  him  by  the  law,  he  has  exceeded 
his  authority  and  is  liable  in  damages  to  the  injured  party, 
for  whose  relief  from  the  disastrous  consequences  of  the  un- 
warranted official  action  the  courts  in  other  effective  ways  will 
interfere,  (b)     If  the  act  were  judicial,  and  in  a  matter  law- 


60  AMERICAN   JURISPRUDENCE.  §  51 

fully  submitted  to  the  officer,  it  is  valid  in  spite  of  his  mani- 
fest errors  of  judgment,  and  he  incurs  no  liability  thereby 
unless  his  decision  is  proved  to  have  been  wilfully  oppressive 
and  corrupt,  (c)  But  judges  of  the  higher  courts,  or  courts  of 
record,  are  not  liable  to  private  parties  for  any  act  of  a  judi- 
cial character  within  their  jurisdiction,  whatever  may  have 
been  their  motives,  though  they  are  subject  to  impeachment 
for  corruption  at  the  instance  of  the  State,  (d) 

Read  (a)  79  D.  468,  note. 

(b)  40  D.  131;  18  How.  396;  94  D.  571. 

(c)  10  D.  582;  68  I).  735. 

(d)  18  D.  432;  7  Wall.  523;  13  Wall.  335. 


§  51.    Of  the    Responsibility  of  Public    Officers   for   their  Acts 
and  Defaults. 

The  State  is  not  responsible  for  the  misconduct  or  neglect 
of  public  officers,  nor  does  it  guarantee  the  validity  of  their 
official  acts,  nor  when  performed  on  its  behalf  is  it  bound  by 
them  beyond  the  scope  of  the  authority  it  has  conferred,  («) 
Superior  officers  are  not  liable  for  the  negligence  or  unlawful 
conduct  of  their  deputies  unless  they  knowingly  employ  im- 
proper ones,  or  the  illegal  action  or  default  resulted  directly 
from  their  prohibitions  or  commands,  (b)  .  Every  officer  is 
chargeable  with  knowledge  of  his  legal  duties,  and  of  the 
limits  of  his  own  authority,  and  if  he  happens,  in  a  given 
instance,  to  be  ignorant,  his  ignorance  is  imputed  to  him  as  a 
fault  and  affords  him  no  protection,  (c)  When  he  obeys  tho 
mandate  of  a  court  which  has  no  jurisdiction  to  issue  the 
command,  or  acts  in  pursuance  of  unlawful  orders  from  his 
civil  or  military  superiors,  he  is  no  less  amenable  to  suit  or 
prosecution  than  if  his  actions  or  omissions  were  sponta- 
neous, unless  the  circumstances  show  that  he  was  under  actual 
coercion  or  duress,  (d)  On  the  other  hand,  where  a  public  offi- 
cer acts  within,the  scope  of  his  authority,  or  in  obedience  to 
the  lawful  directions  of  his  superiors,  he  incurs  no  personal 
responsibility,  and  other  persons,  suffering  from  his  acts, 
must  look  for  compensation  or  relief  to  the  State  or  private 


§  52  STATUS   OF    PUBLIC    OFFICERS.  61 

parties  or  official  masters,  on  whose  behalf  or  by  whose  orders 
they  have  been  performed,  (e) 

Read  (a)  8  Wall.  269 ;  112  U.  S.  24  (31). 
(/,)  127  U.  S.  507 ;  94  D.  461. 
(c)  13  How.  115  (137);  2  Cranch,  170  (179). 
(</)  20  D.  95 ;  89  D.  605. 
(e)  21  D.  181,  note;  14  Wall.  613;  61  D.  470. 


§  52.    Of  the  Remedies  and   Penalties    for  Breaches   of   Official 
Duty. 

Public  officers  may  violate  the  trust  reposed  in  them  by 
failing  to  act  where  it  is  their  duty  to  act("),  by  acting  where 
it  is  their  duty  not  to  act(i),  and  by  performing  an  official 
act  in  one  way  when  it  is  their  duty  to  perform  it  in  an- 
other, (c)  By  either  of  these  methods  the  interests  of  the 
State  may  be  imperilled,  the  persons  or  property  of  private 
parties  may  sustain  an  injury,  and  the  officer  himself  become 
liable  to  impeachment  and  removal,  or  to  summary  dismis- 
sal, or  to  prosecution  for  the  crimes  of  official  negligence  or 
oppression,  or  to  a  suit  for  damages,  or  to  proceedings  in  the 
courts  of  law  or  equity  to  compel  him  to  correct  the  wrong. 
The  process  of  impeachment  and  removal  is  usually  confined 
to  officers  of  great  political  importance,  such  as  the  President 
the  governors  of  States,  and  judges  of  the  higher  courts,  over 
whom  there  is  no  superior  to  whom  they  are  accountable  and 
by  whom  they  could  be  dismissed;  and  officers  found  guilty 
on  this  process  are  not  only  ousted  from  the  office  which  they 
have  abused,  but  are  forever  disqualified  from  holding  any 
other,  (d)  The  punishment  of  summary  dismissal  is  inflicted 
by  superior  officers  upon  their  inferiors  or  by  legislative  bodies 
on  their  members  after  such  a  trial  as  the  law  in  either  case 
provides;  and  every  officer,  unless  belonging  to  a  class  ex- 
pressly  exempted  from  the  jurisdiction  of  the  criminal  courts, 
is  subject  to  indictment  for  his  unlawful  actions  or  omis- 
sions, (c)  In  affording  a  remedy  to  a  private  person  for  the  mis- 
conduct, of  a  public  officer  the  courts  are  guided  by  the  nature 
of  the  official  act  in  question  as  ministerial  or  judicial,  the  form 


62  AMERICAN    JURISPRUDENCE.  §  53 

of  the  misconduct  as  a  refusal  to  act  or  an  unlawful  action, 
and  the  relative  date  of  the  misconduct  as  past  or  prospective. 
Wrongful  official  acts  reasonably  expected  but  not  yet  com- 
mitted may  be  prevented  by  a  writ  of  prohibition  or  an  injunc- 
tion issuing  from  a  court  of  equity.  (/)  The  performance  of 
a  ministerial  act  in  the  prescribed  method,  and  the  exercise  of 
judicial  power  where  a  party  has  the  right  to  invoke  its  exer- 
cise, may,  on  the  officer's  refusal  to  discharge  his  duty,  be 
compelled  b}r  a  mandamus  or  injunction,  (g)  Against  the  conse- 
quences of  unlawful  acts  already  committed,  or  of  ministerial 
acts  improperly  performed,  the  courts  of  equity  can  some- 
times give  relief  by  placing  the  injured  party  in  his  former 
condition;  in  other  cases  resort  must  be  had  to  the  courts  of 
law  for  compensation.  For  errors  in  judicial  acts  which  were 
within  the  sphere  of  the  officer's  authority  no  suit  at  law  or 
equity  can  be  maintained;  the  only  remedy  is  by  writ  of 
error  or  appeal.  (A)  All  persons  dealing  with  public  officers 
are  presumed  to  be  cognizant  of  the  scope  of  their  authority, 
and  if  ignorant  thereof  act  at  their  own  peril. (i) 

Read  Cooley,  C.  Law.  Ch.  vii,  pp.  175-178. 

(a)  1 1  Wall.  136  ;  40  D.  305,  note;  12  D.  201,  note  ;  95  D. 

418,  note 

(b)  111  U.  S.  17. 

(c)  14  D.  352,  note;  90  D.  713,  note. 

(d)  15  D.  322  (327);  85  D.  643. 

(e)  35  D.  551 ;  63  D.  768,  note;  74  D.  676,  note. 
(/)  12  D.  596.  note;  87  D.  578. 

(g)  33  D.  346;  7  Wall.  347;  128  U.  S.  40 

(A)  48  D.  652. 

(0    93  U.  S.  247(256,257). 


§  53.  Of  the  Exemption  of  Public  Officers  from  the  Liabilities 
of  Normal  Status. 
The  exemption  of  a  public  officer  from  the  general  rules  of 
law  is  commensurate  with  the  freedom  of  action  required  for 
the  performance  of  the  official  duties  which  have  been  imposed 
upon  him.  Thus,  for  example,  the  ambassadors  and  other 
diplomatic  representatives  of  foreign  nations,  whose  official 


§  54  STATUS    OF   ALIENS,    INDIANS,   SLAVES.  63 

relations  are  directly  with  the  State  itself,  are  relieved  from 
every  obligation  to  its  laws,  (a)  The  members  of  a  legislative 
body  are  not  subject  to  arrest  on  civil  process  while  in  attend- 
ance on  its  sessions  or  while  going  to  or  returning  from  its 
place  of  meeting;  nor  are  they  liable  for  their  legislative  acts 
or  for  their  utterances  in  debate  except  to  the  body  to  which 
they  belong,  (b)  The  military  commander  of  a  district  in 
time  of  war,  or  of  great  popular  commotion  when  the  ordinary 
machinery  of  the  law  is  powerless,  may  set  the  entire  system 
of  law  aside  and  establish  a  temporary  system  in  its  stead, 
of  which  he  is  at  once  the  lawgiver,  the  judge,  and  the  exec- 
utive, (c)  Officers  of  all  grades,  in  serving  process,  in  execut- 
ing judgments,  in  collecting  revenue,  and  in  every  other  mode 
of  public  service,  may  perform  acts  which  in  others  would  be 
trespasses  to  person  or  property,  unlawful  attacks  upon  repu- 
tation, invasions  of  personal  liberty,  and  in  some  cases  even 
crimes.  These  exemptions  may  extend  also  to  their  prop- 
erty, —  the  residence  of  an  ambassador  partaking  of  the 
sacredness  of  his  own  person,  and  the  fees  and  salaries  of 
public  officers  in  general  being  free  from  liability  to  attach- 
ment or  execution,  (d) 

Read  1  Bl.  Com.,  pp.  164, 165,253-255  ;  1  Kent,  Lect.  ii,  pp.  38, 
39,  44,  45;  Cooley,  C  Law,  Ch.  iv,  pp.  61-63,  Ch. 
vii,  p.  174,  Ch.  xiv,  pp.  303,  304  ;  Woolsey,  §§  87- 
96;  1  Whart.  I.  L.  Dig.  §§92-105;  Vattel,  Book  iv, 
Ch.  vii-ix. 

(a)  7  Cranch,  116. 

(b)  3  I).  189;  4  Dall.  107 

(c)  4  Wall.  2(127). 

(d)  -J3  R.  661 ;  16  Pet.  435. 


Article  VII. 
Of  the  Status  of  Aliens  and  other  Persons  who  are  not  Citizens 

§  54.    Of  Citizenship. 

The  sixth  form  of  the  abnormal  status  of  natural  persons, 
and  the  last  one  which  it  will  be  necessary  to  particularly 


64  AMERICAN    JURISPRUDENCE.  §  54 

notice,  is  that  of  aliens  and  other  persons  who  are  not  citi- 
zens. The  general  laws  are  made  for  the  government  of 
citizens  and  the  protection  of  their  legal  rights,  and  conse- 
quently citizenship  is  an  essential  element  of  normal  status 
although  the  status  of  some  citizens  may  be  abnormal  on 
account  of  their  infancy,  insanity,  coverture,  coercion  or 
duress,  or  their  official  character.  Persons  not  citizens, 
therefore,  depart  from  a  normal  status  as  to  all  those  rights 
and  obligations  which  are  dependent  upon  citizenship,  and 
also  as  to  any  special  disabilities  and  privileges  which  the 
law  may  prescribe  in  reference  to  them.  The  distinctions 
between  citizenship  and  non-citizenship  depend  partly  upon 
the  nature  of  things  and  partly  upon  the  enactments  of  posi- 
tive law.  Citizens  are  members  of  the  political  society  or 
State.  Taken  collectively,  they  compose  the  State  and  exer- 
cise sovereignty  through  the  representatives  whom  they  ap- 
point, (a)  Every  State,  properly  so  called,  in  that  it  possesses 
sovereignty,  is  separate  from  and  independent  of  every  other 
State,  and  in  modern  times  and  among  civilized  races  asserts 
its  sovereignty  over  a  limited  territorial  area  and  a  definite 
population.  Sovereignty  is  necessarily  exclusive.  It  must 
reside  in  its  entirety  within  the  State  over  whose  territory 
and  people  it  is  exercised,  otherwise  it  would  not  be  sov- 
ereignty, and  hence  its  source  must  be  the  members  of  that 
political  society,  the  citizens  of  that  State,  and  them  alone. 
The  group  of  citizens  composing  any  given  State  is,  there- 
fore, always  distinct  from  that  composing  any  other  State; 
and  for  this  reason  a  person  cannot  be  at  the  same  time  a  citizen 
of  two  or  more  sovereign  States,  nor  can  he  be  a  citizen  at  all 
unless  he  is  a  member  of  some  community  which  has  a  com- 
plete political  organization  and  governs  itself  with  an  exclu- 
sive sovereignty.  Thus,  with  regard  to  their  political 
relations  to  any  given  State,  natural  persons  may  be  divided 
into  three  classes:  (1)  Citizens  of  that  State;  (2)  Aliens,  or 
citizens  of  other  States;  (3)  Persons,  not  citizens  of  any 
State.  Every  person  belongs  to  one  of  these  three  classes;  no 
person  can  belong  at  the  same  time  to  more  than  one. 
Read  (a)  92  U.  S.  542 ;  19  How.  393  (404). 


§  55  STATUS   OF   ALIENS,    INDIANS,   SLAVES.  65 

§  55.    Of  the  Right  to  Citizenship 

Every  State  possesses  the  inherent  right  to  determine  for 
itself  what  persons  may  be  admitted  to  its  citizenship.  ('/) 
The  State  is  formed  by  the  free  consent  of  its  individual  mem- 
bers to  unite  in  a  political  organization,  and  this  free  consent 
relates  not  only  to  the  act  of  the  individual  in  joining  the 
association,  but  to  the  act  of  the  association  in  admitting  him 
to  membership.  The  power  to  accept  contains  the  power  to 
exclude,  and  therefore  every  State  must,  of  its  own  nature, 
and  as  a  condition  of  its  existence  as  a  State,  have  the  au- 
thority to  confine  its  membership  within  such  limits  as  it 
deems  expedient,  (b)  But  while  it  may  prescribe  rules  of  ex- 
clusion, it  cannot  trespass  on  the  sovereignty  of  other  States 
over  their  own  territory  and  population  by  making  citizens  of 
whom  it  will.  Within  its  own  domain  and  over  all  persons 
who  reside  therein  its  power  is  absolute.  It  may  require  all 
residents  to  become  citizens,  and  on  such  conditions  as  it  may 
elect,  under  penalty  of  exclusion  from  its  borders;  or  it  may 
restrict  citizenship  to  those  whom,  judging  by  such  standards 
as  it  pleases,  it  may  consider  qualified  to  exercise  political 
rights  and  discharge  political  obligations.  Until  a  very 
recent  period  this  right  to  admit  or  exclude  was  supposed  to 
cover  also  the  right  to  retain,  and  consequently  citizenship 
once  conferred  by  a  State  upon  an  individual  could  not  be 
repudiated  by  him  without  the  State's  consent.  This  position 
is  still  maintained  by  many  nations,  among  whom  the  idea 
that  the  existence  of  the  State  rests  on  the  free  consent  of  its 
members  does  not  yet  fully  prevail.  It  was  even  asserted  by 
the  courts  of  this  country  in  the  earlier  days  of  the  republic. 
But  it  is  not  consistent  with  our  theory  of  the  nature  of  the 
State  or  the  personal  liberty  of  citizens,  and  was  long  since 
by  statutes  and  decisions  so  tar  modified  as  to  be  practically 
eliminated  from  our  law.  (c) 

Read  Vattel,  Rook  i.  Ch.  xix  ;  2  Wluirt.  I.  L.  Dig.  §§  171-172  a; 
17G-1S-2. 

(a)  84  I).  7()i>. 

(b)  130  U.  S.  581. 

(c)  33  1)   546. 

5 


66  AMERICAN    JURISPRUDENCE.  §  56 

§  56.  Of  Citizenship  of  the  United  States  by  Birtlj  and  by 
Adoption. 
Persons  become  citizens  of  the  United  States  by  birth  or 
by  adoption,  (a)  Citizenship  by  birth  vests  in  all  persons 
born  in  any  part  of  the  world  whose  parents  are  citizens  of 
the  United  States,  and  in  all  persons,  except  Indians  and 
the  children  of  diplomatic  officers  of  foreign  States,  whose 
parents  at  the  time  of  their  birth  were  resident  in  the  United 
States.  Citizenship  by  adoption  is  ordinarily  conferred  on 
residents,  who  are  not  citizens  by  birth,  by  a  proceeding 
in  some  competent  court  of  record  in  the  United  States 
called  naturalization,  upon  their  public  renunciation  of  all 
foreign  citizenship  and  their  acceptance  of  the  duties  and 
obligations  of  our  own,  the  conditions  precedent  to  which 
and  the  method  of  procedure  being  fixed  from  time  to  time  by 
Acts  of  Congress,  (b)  The  admission  of  new  territory  with  its 
population  into  the  Federal  Union  as  a  State  bestows  a  simi- 
lar citizenship  upon  all  its  members,  (c)  Citizenship  by  birth 
exists  irrespective  of  sex,  color,  race,  or  previous  condition  of 
servitude.  Citizenship  by  adoption  extends  to  the  wife  and 
minor  children  of  the  person  naturalized  if  they  reside  also  in 
this  country,  (d)  Citizenship  of  the  United  States  is  lost  only 
by  death  or  by  the  adoption  of  the  person  as  a  citizen  of  some 
other  nation,  (e)  The  marriage  of  a  female  citizen  with  an 
alien  does  not  deprive  her  of  her  citizenship,  nor  does  the 
temporary  submission  of  a  citizen  to  a  hostile  military  force 
occupying  the  territory  where  he  resides  work  any  permanent 
change  in  his  relations  to  the  State,  although  for  the  time 
being  it  may  be  necessary  to  treat  him  as  an  enemy.  (/) 

Read  1  Bl.  Com.,  pp.  36G-371,  373,  374  ;  2  Kent,   Lect.  xxv, 
pp.  30-53,  64-73:  Cooley,  C.  Law,  Ch.  iv,  pp.  88, 
89,  Ch.  xiv,  pp  268-272 ;  2  Whart.  I.  L.  Dig.  §§ 
173-175,  183-188. 
(«)  169  U.  S.  649. 

(b)  68  D.  735. 

(c)  143  U.  S.  135. 

<>/)  7  Wall.  496  ;  6  Cranch,  176. 
(e)  84  D.  193,  note. 
(/)    3  Pet.  242. 


§  57  STATUS   OF    ALIENS,    INDIANS,    SLAVES.  67 

§  57.    Of  Citizenship  of  the  Individual  States  of  the  American 
Union. 

In  addition  to  his  citizenship  of  the  United  States,  every 
citizen  is  a  citizen  also  of  the  individual  State  in  which  he 
may  reside,  (a)  These  individual  States  were  once  independ- 
ent political  societies,  each  exercising  sovereignty  within  its 
own  territory,  and  though  they  have  ceased  to  be  such  since 
their  admission  into  the  Federal  Union,  their  organic  form  is 
still  preserved  and  some  residuum  of  their  ancient  sovereignty 
remains.  Citizenship  of  such  a  State  is  not,  therefore,  in  it- 
self precisely  the  same  thing  as  citizenship  of  the  United 
States,  which  is  an  independent  nation,  but  so  far  as  the  in- 
dividual State  is  now  a  State  its  members  are  truly  citizens. 
They  owe  to  it  an  allegiance  subordinate  to  that  due  to  the 
United  States,  participate  in  its  restricted  sovereignty,  exer- 
cise in  reference  to  it  certain  political  rights,  and  are  entitled 
to  the  protection  of  its  institutions  and  its  laws,  (b)  Over  this 
citizenship,  such  as  it  is,  the  individual  State  retains  con- 
trol, both  as  to  its  privileges  and  qualifications,  subject  to 
the  provisions  of  the  Federal  Constitution,  which  prohibit  it 
from  denying  citizenship  to  any  person  on  the  ground  of  race, 
color,  or  previous  condition  of  servitude,  and  compel  it  to 
allow  to  the  citizens  of  all  other  States  of  the  Union  the  im- 
munities which  it  confers  upon  its  own.  (c)  State  citizen- 
ship is  transferable  at  the  pleasure  of  the  citizen  by  a  bona 
/>'</>■  change  of  residence  with  an  intention  to  make  the  new 
State  his  permanent  place  of  abode;  but  transient  change  of 
habitation  for  the  purpose  of  eluding  the  jurisdiction  of  the 
local  courts,  or  with  any  other  fraudulent  design  has  no  effect 
upon  his  citizenship.  (W)  Persons  whose  birthplace  is  uncer- 
tain, but  who.  for  aught  that  appears,  may  have  been  born 
in  the  State,  and  who  have  long  resided  in  its  territory,  are 
likewise  recognized  as  citizens,  (e) 

Read  (a)  6  Pet.  761. 

(//)  95  I).  350. 

(c)  16  Wall.  36;  94  U.  S.  301  ;  92  U.  S.214. 

(</)  129  V.  S.  315 

(<?)  6  How.  !<;:;  (185). 


68  AMERICAN    JURISPRUDENCE.  §§  58,  59 

§  58.    Of  the  Political  Rights  of  Citizens. 

Citizenship  confers  upon  a  person  certain  general  rights  and 
imposes  on  him  certain  general  obligations.  His  rights  may 
be  divided  into  two:  (1)  To  participate  equally  with  all  other 
citizens  in  the  exercise  of  the  sovereignty  of  the  State ;  (2)  To 
be  protected  by  the  State  in  his  person,  in  his  property,  and 
in  his  various  relations.  His  duties  are  likewise  two:  (1)  To 
support  the  State;  (2)  To  obey  its  laws.  The  mode  in  which 
he  participates  in  the  exercise  of  sovereignty  depends  upon 
the  form  of  government  which  the  State  has  adopted,  and 
the  general  plan  upon  which  its  institutions  are  conducted. 
It  is  not  necessary  that  he  should  be  eligible  to  office,  nor 
enjoy  the  privilege  of  suffrage,  nor  directly  take  part  in  any 
governmental  function,  nor  even  be  called  upon  for  any  public 
expression  of  his  wishes  or  opinions  in  reference  to  political 
affairs,  (a)  If  equally  with  other  citizens  of  his  own  status, 
and  on  the  same  conditions,  he  enjoys  these  privileges  and  all 
enjoy  them  so  far  as  the  nature  of  the  State  permits,  his  rights 
and  theirs  are  respected  and  preserved,  (b)  The  sovereignty 
of  any  civilized  state,  the  character  of  its  institutions,  the 
direction  of  its  progress,  the  general  tendency  of  its  domes- 
tic laws  and  foreign  policy,  are  always  manifestations  of  the 
settled  convictions  of  its  people,  and  in  the  development  of 
these  convictions  every  citizen  who  has  reached  the  age  of 
reason,  whether  male  or  female,  infant  or  adult,  participates 
in  proportion  to  his  personal  intelligence  and  his  devotion 
to  his  country. 

Read  Cooley,  C.   Law,  Ch.   xiv,  pp.  275-294;    Cooley,  Const. 
Lim.  Ch.  xvii. 
(a)  21  Wall.  162;  29  R.  582,  note  ;  97  D.  248,  note. 
(6)  92  U.  S.  542. 


§  59.    Of  the  Personal  Rights  of  Citizens. 

A  citizen  is  entitled  to  the  complete  legal  protection  by  the 
State  of  his  person,  his  property,  and  his  relative  rights 
against  all  wrongdoers,  whether  these  are  his  fellow-citizens, 
the  officers  of  the  State  itself,  or  the  citizens  or  officers  of 


§  60  STATUS   OF   ALIENS,    INDIANS,    SLAVES.  G9 

foreign  States.  All  the  wrongs  committed  by  one  citizen 
against  another,  and  many  of  those  committed  by  public  offi- 
cers against  private  citizens,  are  either  torts  or  crimes,  and 
these  it  is  the  duty  of  the  State  to  prevent,  if  possible,  by 
appropriate  laws  suitably  enforced  and  to  give  adequate  com- 
pensation for  them  when  they  are  committed.  Official  wrongs 
outside  the  field  of  crimes  and  torts,  such  as  oppressive  legis- 
lation, corruption  or  incompetency  in  the  courts,  or  the  be- 
trayal of  their  trust  by  high  executives,  the  State  should  guard 
against  by  proper  constitutional  provisions,  by  the  restric- 
tions which  it  throws  around  the  action  of  its  courts  and 
legislatures,  and  by  the  condign  punishment  of  the  offender 
by  impeachment  and  removal.  Wrongs  committed  by  a  citi- 
zen of  a  foreign  State,  if  not  redressed  by  the  tribunals  of  that 
State,  become  a  ground  of  complaint  against  it  on  the  part  of 
the  State  whose  citizen  has  suffered  injury,  and  this  complaint 
may  be  enforced,  if  need  be,  by  reprisal  or  by  actual  war. 
The  same  mode  of  redress  is  open  when  the  citizen  of  one 
State  is  injured  by  the  direct  action  of  a  foreign  State. 

Read  1  Bl.  Com.,  pp.  125-128,  141,  142,  2:53-236,  309  ;  Vattel, 
Book  i,  §§  3S-51,  158-172,  Book  ii,  §§  71-7S,  341- 
350;  2  Burlamaqui,  pp.  90-107,  178,  179,  180-183; 
Woolsey,  §§76,  116,  118. 


§  60.    Of  the  Duties  of  Citizens. 

The  obligation  of  a  citizen  to  support  the  State  extends  to 
both  his  person  and  his  property.  It  is  his  duty,  when  called 
upon  according  to  the  rules  of  law,  to  render  personal  service 
in  the  military  or  naval  forces,  to  aid  in  the  pursuit  and  ar- 
rest of  criminals,  to  give  assistance  to  executive  officers,  to 
sir  on  juries  and  to  perform  any  other  acts  for  the  public  which 
the  law  may  from  time  to  time  require.  Out  of  Ins  property 
lie  must  pay  taxes  in  whatever  form  the  State  may  lawfully 
impose  them  as  his  proportionate  contribution  toward  public 
expenses,  and,  furthermore,  he  must  surrender  his  specific 
property  to  the  State  for  public  use  whenever,  in  the  judgment 
of  the  State,  necessity  demands  it.  (a)    His  obligation  to  obey 


70  AMERICAN   JURISPRUDENCE.  §  61 

the  laws  relates  to  all  the  laws  which  have  been  made  for  the 
observance  of  natural  persons,  unless  through  infancy,  in- 
sanity, or  some  abnormality  of  status  consistent  with  his  citi- 
zenship he  has  become  exempted  from  their  operation. 

Read  Cooley,  C.  Law,  Ch.  iv,  pp.  56-61 ;  Cooley,  Const.  Lim., 
Ch.  xiv. 
(a)  88  D.  515. 

§  61.    Of  the  Abnormal  Status  of  Aliens. 

The  peculiar  attributes  which  characterize  the  status  of 
alienage  are  suggested  by  this  description  of  the  rights  and 
duties  of  a  citizen.  An  alien  is  a  citizen  of  a  State  other 
than  our  own.  If  he  lives  in  this  country  he  is  known  as  a 
denizen  or  resident  alien.  If  his  nation  is  at  peace  with  ours, 
he  is  an  alien  friend;  if  war  prevails  between  them,  he  is  an 
alien  enemy.  An  alien  friend,  resident  abroad,  has  no  legal 
rights  or  duties  in  reference  to  the  United  States  except  as  to 
whatever  property  of  his  may  be  within  our  borders.  Ho 
cannot  participate  with  our  own  citizens  in  the  exercise  of 
sovereignty,  nor  meddle  with  the  conduct  of  our  political 
affairs  otherwise  than  by  the  expression  of  his  opinion  or 
advice.  He  has  no  claims  upon  our  government  for  the  pro- 
tection or  redress  of  any  injuries  not  threatened  or  committed 
by  itself  or  by  its  subjects,  owes  it  no  duty  of  public  service, 
and  is  not  personally  bound  to  contribute  to  its  support  nor 
under  any  obligation  to  obey  its  laws.  The  property  which 
he  holds  in  this  country  is,  however,  under  its  control.  As 
to  that,  his  ownership,  enjoyment,  and  responsibilities  are 
measured  by  our  laws.  A  resident  alien  friend  enters  into  a 
closer  relation  with  the  State.  He  cannot  legitimately  parti- 
cipate in  political  affairs,  nor  be  obliged  to  serve  the  State  in 
any  governmental  capacity,  as  in  the  army  or  the  navy,  or  as 
a  public  officer  or  on  a  jury,  but  is  liable  to  all  the  private 
duties  of  a  citizen  and  entitled  to  the  personal  protection  of 
our  laws,  (a)  His  property  in  this  country  is  also  held,  trans- 
mitted, and  defended  by  our  laws,  and  is  subject  to  the  same 
burdens  as  that  of  our  own  citizens.  An  alien  enemy,  wher- 
ever resident,  has  no  legal  rights,  either  of  property  or  person, 


§  62  STATUS   OF   ALIENS,    INDIANS,    SLAVES.  71 

but  if  within  our  borders  might,  as  a  matter  of  strict  law,  be 
treated  as  a  prisoner  of  war,  and  all  his  property  might  be 
confiscated  by  the  State.  Customs  of  long  standing  and 
observance  among  civilized  nations  have,  in  modern  times, 
established  a  policy  more  liberal  and  humane,  and  resident 
alien  enemies,  not  actually  engaged  in  hostile  machinations, 
are  now  accorded  the  same  rights  as  alien  friends,  (b) 

Read  1  Bl.  Coin.,  p.  372. 
(a)  9  R.  489. 
(6)  8  Crauch,  253  (283,  291-295). 

§  62.    Of  Recent   Ameliorations    in   the    Abnormal    Status    of 
Aliens. 

The  disabilities  which  attend  the  status  of  alienage  were 
formerly  extensive  and  severe.  Under  the  laws  which  once 
prevailed  in  this  country  as  well  as  England  an  alien  could 
acquire  real  property  only  by  purchase  and  could  hold  it  only 
until  the  sovereign  saw  fit  to  take  it  away,  (a)  He  was  per- 
mitted to  own  personal  estate  and  to  dispose  of  it  by  sale  or 
gift  or  testament,  but  he  had  no  inheritable  blood  and  could 
neither  be  the  heir  of  any  other  person  nor  have  heirs  of  his 
own.  (J)  He  was  distinctly  disfavored  by  the  law,  which 
seemtfd  to  have  been  framed  in  order  to  discourage  and,  if 
possible,  prevent  the  residence  of  foreigners  and  compel  them 
to  remain  in  the  countries  in  which  they  were  born.  The  ad- 
vent of  the  United  States  into  the  family  of  nations,  with  its 
immense  and  sparsely  peopled  territory  and  its  inexhaustible 
but  almost  wholly  undeveloped  resources,  soon  dissipated 
these  exclusive  theories  and  introduced  a  new  policy  into  the 
common  law.  The  necessity  of  increasing  the  population  as 
rapidly. as  possible  became  apparent,  and  laws  encouraging 
emigration  and  removing  many  of  the  disabilities  of  alien 
residents  were  speedily  enacted.  Every  inducement  was  of- 
fered to  such  residents  to  become  citizens,  and  during  the 
past  century  a  gradual  assimilation  of  their  status,  as  to  per- 
sonal rights,  to  that  of  citizens  has  been  in  progress.  Their 
political  disabilities  still  remain,  for  these  are  the  essential 
elements  which  differentiate  the  alien  from  the  citizen;  but 


72  AMERICAN   JURISPRUDENCE.  §  63 

they  now  stand  before  the  courts  and  have  the  same  rights  in 
real  and  personal  property  as  if  they  were  citizens,  (c)  Non- 
resident aliens  are  also  allowed  to  purchase  and  hold  lands 
and  to  transmit  them  by  deed  or  will  to  other  aliens;  but  it 
is  still  the  law,  at  least  in  some  of  our  States,  that  they  have 
no  inheritable  blood  and,  therefore,  cannot  take  lands  by 
descent  either  from  resident  aliens  or  citizens.  Where  this 
doctrine  is  recognized  no  other  person,  whether  citizen  or 
alien,  can  inherit  lands  from  any  citizen  or  resident  alien,  if, 
in  order  to  inherit,  he  must  trace  his  relationship  to  the 
former  owner  through  a  non-resident  alien  who  could  not  him- 
self have  inherited  the  property.  This  disability  is,  in  fact, 
almost  the  only  private  one  remaining  of  the  many  from 
which  aliens  suffered  a  hundred  years  ago. 

Read  1  Bl.  Com.,  pp.  369-372;  1  Kent,  Lect.  hi,  pp.  56-65; 

2  Kent,  Lect.  xxv,  pp.  53-73;   Vattel,  Book  ii, 

§§  99-115,  Book  iii,  §§  70-77;   Woolsey,  §§  65-69, 

71-74,  124-126  ;  2  Whart.  I.  L.  Dig.  §§  201-206. 

(«)  7  Cranch,  603 ;  11  Wheat.  332. 

(b)  6  Pet.  102  ;  24  D.  198. 

(c)  1  Wash.  R.  P.  p.  49,  note  1 ;  76  D.  622,  note. 


§  63.    Of  the  Abnormal  Status  of  Indians. 

The  principal  persons  who  are  not  citizens  of  any  State, 
and  of  whom  our  laws  in  any  way  take  notice,  are  the  Indian 
tribes  inhabiting  the  territory  of  the  United  States.  These 
are  conquered  peoples  whom  it  has  been  the  policy  of  our 
government  not  to  civilize  and  incorporate  among  our  own 
people  but  to  maintain  in  a  certain  state  of  independence. 
They  are  not  citizens  of  the  United  States  but  distinct  nations, 
and  yet  not  nations  in  a  legal  sense  as  enjoying  an  exclusive 
sovereignty  over  themselves.  They  are  States,  having  their 
own  rules  and  customs,  but  neither  States  foreign  to  the 
United  States  nor  States  of  our  Federal  Union.  They  are 
domestic,  dependent  nations,  the  wards  of  the  United  States, 
to  whom  our  government  stands  in  loco  parentis.  They  are 
subject  to  the  Acts  of  Congress  and  the  laws  of  the  United 


§  64  STATUS   OF   ALIENS,    INDIANS,    SLAVES.  73 

States  and  yet  possess  a  political  autonomy  which  enables  them 
to  treat  with  the  United  States  like  other  nations  and  makes 
a  treaty  with  them  the  supreme  law  of  the  land.  Their  status 
is  thus  a  most  peculiar  one,  difficult  alike  to  justify  and  to 
understand,  not  capable  of  any  clear  general  statement  but 
expressed  only  in  the  detailed  treaties  and  statutes  by  which 
their  position  before  the  laws  of  the  United  States  has  been 
defined,  (a) 

Read  1   Kent,  Lect.    xii,  pp.  257-260;  2  Whart.  I.   L.   Dig. 
§§  208-211. 
(a)  8  Wheat.  543;  5  Pet.   1  ;  17  Wall.  211  (243);  112 
U.  S.  94;  118  U.  S   375;  11  D.  351. 


§  64.    Of  the  Abnormal  Status  of  Slaves. 

A  slave,  though  actually  a  natural  person  and  by  birth 
entitled  to  all  the  rights  of  any  other  person,  has  in  law  no 
status,  because  in  law  he  is  not  a  person  but  a  thing.  By  his 
reduction  to  a  state  of  involuntary  servitude  he  has  surrendered 
or  been  deprived  of  his  capacity  to  think  and  will  for  himself, 
and  has  become  wholly  subject  to  the  will  of  other  men.  The 
law  can  logically  take  no  other  notice  of  him  than  of  any 
other  animal  whom  it  may  restrain  or  destroy  for  the  good  of 
society,  and  who  can  have  no  rights  which  the  law  can  recog- 
nize or  protect  and  no  duties  which  he  can  be  expected  to 
perform.  Illogically  or  not,  however,  the  law  is  in  some  cases 
compelled  to  impute  to  him  personal  attributes  and  treat 
him  as  capable  of  self-guidance  and  criminal  responsibility. 
While  the  Constitution  and  the  people  of  the  United  States 
tolerated  the  institution  of  slavery,  this  was  the  status,  or 
want  of  status,  of  the  slave,  (a)  The  abolition  of  the  institu- 
tion and  the  Amendments  to  the  Federal  Constitution  gave  to 
former  slaves  the  privileges  of  citizenship  and  placed  them 
upon  equal  ground  before  the  law  with  those  who  had  been 
always  free. 

Read  1  BI.  Com.,  pp.  123-425  ;  2  Kent,  Lect.  xxxii,  pp.  248- 
258  ;  Cooley.  C.  Law,  Ch.  xiii.  pp.  233-240. 
(a)   19  Mow.  393;  44  1>.  241. 


74  AMERICAN    JURISPRUDENCE.  §§65,66 

§  65.    Of  the  Dependence  of  Status  upon  Law. 

In  closing  the  discussion  of  this  subject  it  may  be  useful  to 
repeat  that  in  most  instances  it  is  the  law  which  determines 
status  and  defines  its  rights  and  duties.  («)  Except  in  those 
cases  where  abnormality  of  status  arises  out  of  the  essential 
nature  of  political  relations,  as  in  alienage  or  public  office, 
varieties  of  status  are  altogether  artificial ;  and  were  it  deemed 
advisable  the  State  could  abolish  these  distinctions  and  govern 
all  natural  persons  by  the  same  uniform  rules.  But  it  is  in 
the  interest  of  justice  and  humanity  that  these  distinctions 
should  be  made  and  recognized,  and  the  law  fitted  as  far  as 
may  be  to  the  exigencies  of  each  individual  or  class  of  indi- 
viduals ;  and  one  of  the  chief  characteristics  as  well  as  causes 
of  the  progressive  amelioration  of  social  and  political  condi- 
tions is  the  increasing  minuteness  of  the  classification  by 
which  one  status  is  distinguished  from  another. 
Read  (a)  19  How.  393  (595) ;  55  D.  87. 

SECTION    III. 

OF    DOMICILE. 

§  66.    Of  the  Nature  of  Domicile. 

Every  natural  person  has  a  domicile.  Domicile  is  the  place 
in  which  a  person  has  his  legal  home,  (a)  The  nature  of 
political  society  requires  that  every  member  of  it  must  have 
his  political  abode  within  the  territory  over  which  it  exercises 
sovereignty,  although  he  may  be  physically  absent  from  it ; 
and  when  its  territory  is  divided  into  minor  districts  which 
limit  the  local  jurisdiction  of  its  courts,  the  precincts  of  its 
executive  officers,  the  enjoyment  of  the  elective  franchise,  the 
imposition  of  taxes,  and  other  governmental  operations,  or  in 
which  special  rules  control  the  ownership  and  transmission 
of  property,  it  is  necessary  that  every  person  should  be  so 
related  to  one  of  these  districts,  to  the  exclusion  of  all  others, 
that  his  legal  privileges  and  obligations  may  at  any  moment 
be  precisely  ascertained,  (b)  Residence  and  domicile  are,  there- 
fore, not  identical  in  law.     Residence  is  any  place  in  which 


§  67  DOMICILE.  75 

the  person  physically  abides,  as  distinguished  from  the  place 
in  which  he  tarries  on  his  journey  to  some  other  place,  and 
includes  the  elements  of  bodily  presence  and  an  intention  to 
remain  for  a  greater  or  less  period  of  time  as  an  inhabitant. 
A  person  may  thus  have  many  residences,  alternate  or  suc- 
cessive, for  purposes  of  business  or  pleasure,  yet  none  of  these 
may  be  the  place  where  he  politically  belongs  and  has  his  legal 
home,  (c)  Domicile  is  a  matter  not  merely  of  physical  pres- 
ence or  of  interior  intention  (d),  but  of  legal  relation,  although 
the  law  presumes  that  every  person  resides  where  he  now  is, 
and  that  his  place  of  residence  and  domicile  are  one,  until 
an  investigation  causes  his  true  residence  or  domicile  to 
appear,  (e) 

Read  (a)  S3  I).  502. 
{h)  23  St.  37. 

(c)  32  D.  423 ;  55  D.  350 ;  48  St.  706,  note. 

(d)  59  D.  107,  note:  61  D.  530. 

(e)  39  D.  142;  60  D.  135. 


§  67.    Of  the  Locality  of  Domicile. 

Domicile  is  a  place  having  a  fixed  centre  but  a  variable 
circumference.  The  fixed  centre  is  the  precise  spot  on  which 
or  in  which  the  person  dwells  when  he  is  at  his  legal  home. 
This  point  of  contact  between  the  person  and  the  locality 
remains  always  the  same,  but  the  area  covered  by  the  dom- 
icile enlarges  or  contracts  with  the  legal  purposes  for  which 
the  domicile  has  been  established.  A  person,  for  instance, 
has  his  legal  home  in  one  of  the  wards  of  a  certain  city  ;  the 
city  is  included  in  a  town;  the  town  in  a  probate  district ;  the 
probate  district  in  a  county ;  the  county  in  a  State ;  the  State 
in  the  United  States.  The  exact  spot  which  constitutes  his 
legal  home  may  never  vary  during  his  lifetime,  but  for  some 
purposes,  such  as  the  time  and  place  of  voting  for  city  officers 
and  the  candidates  for  whom  he  may  cast  his  ballot,  his  dom- 
icile is  the  city  ward  ;  for  other  purposes,  such  as  public- 
school  privileges,  city  ordinances  and  taxation,  the  city  is  his 
domicile;   for  other  purposes,  such  as  the  election  of  repre- 


76  AMERICAN   JURISPRUDENCE.  §  68 

sentatives  to  the  State  legislature,  the  town  is  his  domicile ; 
for  the  settlement  of  his  estate  after  his  decease,  the  probate 
district  is  his  domicile;  for  the> jurisdiction  of  county  courts, 
his  domicile  is  the  county  ;  for  every  governmental  purpose  not 
distinctly  national  or  by  the  Federal  Constitution  exclusively 
lodged  in  the  United  States,  the  State  is  his  domicile;  for  na- 
tional purposes  and  for  all  other  matters  over  which  the  United 
States  has  the  sole  jurisdiction,  his  domicile  is  bounded  by 
the  limits  of  the  United  States.  Two  persons  may  thus  have 
the  same  domicile  in  reference  to  one  political  subdivision  of 
the  territory  and  a  different  domicile  in  reference  to  another  ; 
the  same  as  to  the  city,  different  as  to  the  ward;  the  same  as 
to  the  United  States,  different  as  to  the  State ;  and  only  those 
whose  legal  homes  are  in  the  same  minutest  subdivision  can 
have  in  all  respects  precisely  the  same  domicile,  and  subject 
to  their  differences  of  status  enjoy  exactly  identical  legal 
rights,  (a) 

Read  (a)  10  R.  698. 


§  68.    Of  the  Domicile  of  Origin. 

The  first  domicile  which  any  person  has  is  his  domicile  of 
origin,  to  which  he  becomes  legally  attached  by  operation  of 
law  at  the  earliest  moment  of  his  independent  physical  exist- 
ence. In  the  case  of  a  legitimate  child  this  is  the  place 
where  its  father  had  his  domicile  at  the  date  of  the  birth  of 
the  child  ;  if  the  child  is  illegitimate,  its  domicile  is  the  place 
where  it  is  born,  or  according  to  some  authorities  the  place 
where  at  its  birth  its  mother  has  her  domicile.  The  domicile 
of  origin,  thus  acquired  without  the  concurrence  of  the  per- 
son, remains  until  it  is  exchanged  for  another  either  by  the 
person  himself  or  by  some  other  person  competent  to  change 
it.  (a)  A  male  infant  cannot  alter  his  own  domicile,  but  fol- 
lows that  of  his  father  while  the  father  lives,  then  that  of  his 
mother  if  she  still  survives  (!>) ;  and  if  both  parents  die  he  re- 
tains the  domicile  last  acquired,  unless  he  is  removed  out  of  the 
State  by  other  blood  relations  and  by  the  law  of  his  new  resi- 
dence obtains  a  domicile  therein,  (c)    The  domicile  of  a  female 


§  69  DOMICILE.  77 

infant  is  fixed  by  the  same  rule,  except  in  the  event  of  her 
marriage,  after  which  her  domicile  is  that  of  her  husband.  A 
guardian  cannot  change  the  domicile  of  his  infant  ward  (d), 
nor  can  a  married  woman,  under  ordinary  circumstances,  vary 
her  own  domicile.  The  legal  home  of  her  husband  is  hers  also 
during  coverture,  whether  she  actually  lives  with  him  or 
not.  (e)  But  when  they  have  been  separated  by  the  courts, 
though  not  absolutely  divorced,  or  when  in  order  to  apply 
for  a  divorce  it  is  necessary  for  her  to  possess  a  different 
domicile  from  his,  she  can  obtain  a  new  one  like  any  other 
person.  The  domicile  of  a  widow  continues  to  be  that  of  her 
deceased  husband  until  she  has  acquired  one  for  herself.  (/) 

Read  Story,  Conf.  L.,  §§  505,  506. 
(a)  54  D.  55. 

(6)  37  D.  525;  39  St.  190  (204,  205). 
(c)   114  U.  S.  218  (222,223). 
(</)  112  U.  S.  452  (470-472). 
(e)  110  U.  S.  701. 
(/)  21  Mow.  103. 

§  69.    Of  Change  of  Domicile. 

An  adult,  other  than  a  married  woman,  has  a  legal  right  to 
change  his  domicile  as  often  as  he  chooses.  Every  domicile 
once  existing  continues  until  a  new  one  is  obtained,  and  is 
not  affected  by  any  mere  absence  of  the  person  from  it,  how- 
ever prolonged,  (a)  To  change  his  domicile  it  is  necessary 
for  him  to  take  up  his  actual  abode  in  the  new  locality  with 
the  intention  to  finally  abandon  his  former  legal  home,  and  to 
make  the  new  locality  his  present  and  future  legal  home  either 
permanently  or  for  an  indefinite  time.  The  fact  of  his  de- 
parture from  the  old  abode  and  of  his  residence  in  the  new 
one  is  apparent  to  all  observers.  His  intention  to  finally 
abandon  the  old  home  and  make  the  new  one  permanent  may 
be  inferred  from  circumstances,  such  as  his  own  declarations, 
his  exercise  of  local  political  rights,  his  payment  of  personal 
taxes,  his  embarkation  in  a  settled  business,  or  his  erection  or 
purchase  of  a  dwelling  house,  (b)  No  specified  period  of  time 
is  necessary  to  perfect  this  transfer,  (c)     If  the  removal  of 


78  AMERICAN    JURISPRUDENCE.  §  70 

his  home  from  one  place  to  the  other  is  complete  and  has 
been  coupled  with  the  requisite  intention,  his  domicile  is 
already  changed,  (d) 

Read  1  Kent,  Lect.  iv,  pp.  76-79 

(a)  70  D.  372 ;  61  D.  237 

(b)  21  Wall.  350;  117  U.  S.  123;  34  St.  311,  note. 

(c)  13  St.  896. 

(d)  129  U.  s.  315. 


§  70.    Of  the  "  Law  of  Domicile." 

The  particular  system  of  rules  in  force  in  the  locality  in 
which  a  person  has  his  legal  home  is  known  as  the  lex  dom- 
icilii, or  "  the  law  of  the  domicile."  To  what  subjects  these 
rules  extend,  and  how  large  a  proportion  of  the  whole  body 
of  law  by  which  a  person  is  governed  consists  of  the  lex 
dot// icilii,  depends  upon  the  scope  of  the  word  "domicile" 
when  used  in  speaking  of  its  law.  Obviously,  the  lex  domicilii 
of  a  city  is  not  identical  with  the  lex  domicilii  of  the  State, 
the.  former  being  comprised  within  a  narrow  range  of  subjects 
as  compared  with  the  latter,  yet  at  the  same  time  prescribing 
many  details  as  to  which  the  latter  establishes  no  rule.  In 
regard  to  many  questions  of  right  and  duty  the  student  will 
find  himself  referred  for  their  determination  to  the  law  of 
domicile,  and  must,  therefore,  understand  that  by  this  law  is 
meant  the  entire  body  of  rules  which  govern  the  question  in 
that  particular  locality  where  the  domicile  is  fixed,  whether 
these  rules  proceed  from  the  United  States,  the  State,  or  any 
smaller  subdivision  of  the  body  politic,  or  have  resulted  from 
the  legislative  acts  of  all,  each  legislating  in  its  own  peculiar 
sphere. 


§  71  CORPORATIONS    IX    GENERAL.  79 


CHAPTER  III. 

OF  ARTIFICIAL  PERSONS   OR   CORPORATIONS. 


SECTION   I. 

OF    THE    NATURE    AND    ATTRIBUTES    OF    CORPORATIONS. 

§  71.    Of  the  Nature  and  Purpose  of  Corporations. 

Artificial    persons,    called    also    "conventional    persons,"   ^ 
"juristic  persons,"  "bodies  politic  and  corporate,"  but  most 
commonly  known  as  "corporations,"  are  persons  created  by 
the  law  for  purposes  which  natural  persons  could  not  accom-    i 
plish.    A  natural  person  is  subject  to  two  imperfections  which 
render  him  incapable  of  meeting  all  the  demands  of  social  and 
political  interests.    In  the  first  place  he  is  mortal;  his  reason    ' 
and  will  operate  upon  mundane  affairs,  so  far  as  we  know, 
only  for  the  short  period  of  his  eai-thly  life ;  and  the  enter- 
prises which  he   inaugurated  or  controlled  then  pass  under 
the  direction  of  other  persons,  who  may  or  may  not  be  able 
and  willing  to  carry  forward  his  designs.     Persistency  in  the  \ 
prosecution  of   purposes,   whose    realization   requires  a  long 
continued    uniformity    of    intention    and    endeavor,    can    be 
secured   only  by  committing  such  purposes  to    personalities    / 
which  do  not  die,  but  whose  reason  and  will  subsist  unchanged 
and  indefectible  until  the  ends  to  which  they  were  originally 
devoted  have  been  fully  attained;  and  as  such  personalities 
do  not  exist  by  nature  it  is  necessary  that  they  should  be 
created  by  the  law.     In  the  second  place,  a  natural   person 
is  limited  in  knowledge,   wisdom,   energy,   and    possessions. 
Conscious   of    these    limitations,    he    instinctively    seeks   to 
escape  them  by  entering  into  combinations  with  other  per- 


80  AMERICAN   JURISPRUDENCE.  §  72 

sons,  in  order  that  by  their  united  powers  and  property  objects 
might  be  accomplished  which  to  his  single  personality  would 
be  impossible.  But  every  such  voluntary  combination  is 
unstable,  since  it  depends  for  its  existence  upon  the  continu- 
ing consent  of  all  its  members,  and  for  its  success  upon  their 
harmonious  co-operation.  It  is  only  when  its  existence  is 
rendered  imperishable  by  law,  and  its  harmonious  operation 
is  guaranteed  by  the  substitution  for  the  several  divergent 
personalities  by  which  it  is  naturally  controlled  of  a  new  per- 
sonality whose  action,  being  single,  cannot  be  antagonistic  to 
itself,  that  the  highest  results  of  human  combination  are 
achieved.  Hence  in  civilized  States,  in  every  age,  these  arti- 
ficial personalities  have  appeared,  for  governmental,  social, 
charitable,  religious,  or  commercial  purposes,  emanating  from 
the  sovereign  authority  of  the  State  and  endowed  by  it  with 
unity,  immortality,  and  whatever  other  powers  and  attributes 
the  accomplishment  of  their  purposes  might  require.  To  our 
own  law  they  have  been  known  for  upwards  of  a  thousand 
years,  created  at  first  mainly  for  charitable  and  religious 
objects,  but  later  also  for  the  conduct  of  commercial  enter- 
prises, (a) 

Read  1  Bl.  Com.,  pp.  467-469  ;  2  Kent,  Lect.  xxxiii,  pp.  268- 
272;    Holland,   Ch.  xiv,   pp.  298-308;    Markby, 
§§  136-145,  324  ;  Morey,  pp.  262-266. 
(a)  4  Wheat.  518  (636,  667,  668)  ;  34  St.  541  (545-547). 


§  72.    Of  the  Creation  of  Corporations. 

Corporations  are  created  by  the  State;  in  this  country, 
through  its  legislative  body  by  an  act  called  "  an  act  of  incor- 
poration," or  "the  grant  of  a  charter."  (a)  This  act  may  be 
a  special  statute  conferring  a  specific  charter  upon  one  associ- 
ation of  natural  persons,  or  it  may  be  a  general  statute  pre- 
scribing certain  conditions  upon  the  fulfilment  of  which  any 
association  of  persons  will  become  a  corporation.  Where  a 
corporation  is  created  by  special  statute,  the  statute  itself 
is  at  once  the  charter  and  the  act  of  conferring  it,  and  in  it 
the  nature,  attributes,  and  powers  of  the  corporation  are  fully 


§  73  CORPORATIONS   IN   GENERAL.  81 

set  forth.  Where  the  corporation  is  organized  under  a  general 
statute,  the  written  certificate  of  their  corporate  character  and 
purposes  which  its  members  are  compelled  to  file  in  some 
public  office,  as  one  of  the  conditions  precedent  to  their  ac- 
quisition of  a  corporate  personality,  describes  in  detail  its 
attributes  and  powers,  and  taken  together  with  the  provisions 
of  the  general  statute  constitutes  its  charter,  (b)  To  render 
a  charter  effective  it  must  be  accepted  by  the  persons  on 
whom  it  is  conferred.  As  to  a  corporation  organized  under  a 
general  statute,  the  compliance  of  its  members  with  the  con- 
ditions precedent  is  also  their  acceptance  of  the  charter,  to 
obtain  which  the  conditions  are  performed.  A  charter 
granted  by  a  special  statute  can  be  accepted  only  after  or  at 
the  time  the  grant  is  made,  and  this  acceptance  may  be  mani- 
fested by  a  formal  vote  of  the  members  or  by  their  corporate 
action  in  pursuance  of  the  grant.  ('•) 

Read  1  Bl.  Com.,  pp.  472-474  ;  2  Kent,  Lect.  xxxiii,  pp.  276, 
277. 
(«)  95  I).  26:3;  134  U.  S.  594  (599,  600)  j  143  U.  S.  305 
(312,  313);  153  U.  S.  525. 

(b)  73  D.  658  ;  33  St.  172,  note. 

(c)  10  D.  34  ;  53  D.  450,  note. 


§  73.    Of  the  Charter  of  a  Corporation. 

The  charter  of  a  corporation  is  the  evidence  of  its  organic 
life  and  the  definition  of  its  personal  rights  and  duties.  Its 
existence  begins,  continues,  and  ends  at  and  during  the 
periods  fixed  by  its  charter,  and  all  its  privileges  and  obliga- 
tions are  measured  by  the  language  of  that  instrument,  includ- 
ing both  what  it  expresses-  and  what  it  necessarily  implies. 
Whatever  might  have  been  the  original  intention  of  its  mem- 
bers or  may  now  be  for  their  interest,  and  whatever  purpose 
the  legislature  may  have  entertained  in  its  creation,  the  char- 
ter is  the  final  and  inflexible  manifestation  of  that  purpose 
and  intention,  and  cannot  be  enlarged  by  interpretation  or  by 
implication  beyond  its  evident  meaning  at  the  time  it  was 
conferred.      Tin'   enumeration   of   corporate   powers   in  the 

o 


82  AMERICAN   -TURISPRUDENCE.  §  74 

charter  thus  excludes  all  other  powers  except  those  whose 
enjoyment  is  incidental  to  the  exercise  of  such  as  are  enu- 
merated, and  prohibits  every  corporate  act  in  excess  of  these 
enumerated  and  incidental  powers,  (a)  In  interpreting  a  cor- 
porate charter  the  courts  are  guided  by  a  double  rule :  first, 
that  the  manifest  intention  of  the  legislature  to  create  a  cor- 
poration with  some  rights  and  duties  must  be  sustained; 
second,  that  as  to  these  particular  rights  and  duties  it  cannot 
have  intended  anything  more  favorable  to  the  corporation 
than  the  charter  clearly  defines.  This  is  what  is  meant 
when  it  is  said  that  the  construction  of  a  charter  must  be 
favorable  to  the  public  and  against  the  corporation.  It  is 
favorable  both  to  the  public  and  the  corporation  to  assume 
that  whatever  grant  the  public  has  attempted  to  bestow  is 
valid;  it  is  favorable  to  the  public  and  against  the  corpora- 
tion to  resolve  all  doubts  as  to  the  scope  of  its  authority  by 
the  rule  that  whatever  is  not  clearly  granted  has  not  been 
conferred. (6) 

Read  1  Bl.  Com.,  pp.  475-479  ;   2  Kent,  Lect.  xxxiii,  pp.  298- 
300. 
(a)  41  R.  221;  07  D.  471  (472);  75  D.  574. 
(6)  11  Pet.  420  (544-549);  1  Black,  358  (380);  3  Wall. 
51  (74,  75). 

§  74.    Of  the  Franchises  and  Powers  of  a  Corporation. 

The.  powers  bestowed  upon  a  corporation  by  its  charter 
are  sometimes  called  its  "franchises."  A  franchise,  strictly 
speaking,  is  a  privilege  which  by  its  nature  belongs  solely  to 
the  State,  and  which  consequently  private  persons  cannot  en- 
joy unless  by  virtue  of  a  grant  to  them  by  the  State,  (a)  Thus 
the  right  to  be  or  to  create  a  legal  personality,  or  to  take  the 
property  of  individuals  for  public  use,  or  to  impose  or  release 
from  taxation,  are  franchises,  being  sovereign  rights  beyond 
the  reach  of  any  natural  person  unless  admitted  to  participate 
in  them  by  the  act  of  the  sovereign  himself.  Every  corporate 
charter  confers  at  least  one  franchise  of  this  character,  — the 
right  to  be  a  legal  personality,  — and  may  confer  others  ac- 
cording to  the  purposes  for  which  the  corporation  has  been 


§  74  CORPORATIONS  IN  GENERAL.  83 

formed,  (b)  But  in  addition  to  such  rights  as  these  every  cor- 
poration has  many  powers  which  natural  persons  also  possess, 
and  which,  therefore,  are  not  franchises  in  any  proper  sense, 
although  they  are  frequently  so  named  because  they  are  enu- 
merated in  its  charter,  and  if  not  so  enumerated  could  not  be 
enjoyed.  This  distinction  between  the  proper  and  improper 
use  of  the  term  "franchise"  becomes  important  mainly  in 
reference  to  the  authority  which  a  corporation  has  over  its 
own  charter  powers.  A  true  franchise  it  can  neither  acquire, 
control,  transfer,  nor  abandon  without  the  initial  or  concur- 
rent action  of  the  State,  (c)  Its  franchises  in  the  other  sense 
—  that  is,  the  powers  it  shares  with  every  natural  person  — 
it  can  use,  disuse,  or  dispose  of  with  the  same  freedom  as  any 
other  person,  unless  restrained  by  the  nature  of  the  corporate 
body  or  by  the  provisions  of  its  charter.  Among  these  nat- 
ural powers  of  every  corporation  are  the  power  to  govern  itself 
by  enacting  by-laws  (d)  and  determining  questions  by  majority 
vote,  the  power  to  take,  bold,  and  convey  property,  the  power 
to  make  contracts  and  to  sue  and  be  sued,  and  the  power  to 
appoint  officers  or  agents  and  to  prescribe  rules  for  their  ob- 
servance, always,  however,  within  the  limits  set  for  it  by  the 
act  of  its  creation  (e) ;  the  difference  in  this  respect  between 
the  natural  and  artificial  persons  being  that  the  natural  person 
is  a  complete  personality,  equal  in  rights  to  every  other  per- 
son, and  therefore  can  do  anything  within  his  natural  powers 
which  the  law  does  not  forbid  him  to  do,  while  the  artificial 
person  is  a  restricted  personality  commensurate  only  with 
the  purposes  for  which  it  was  created,  and,  therefore,  can  do 
nothing  which  the  law  has  not  expressly  or  impliedly  clothed 
it  with  authority  to  do. 

Read  2  Bl.  Com.,  p.  37;  2  Kent,  Lect.  xxxiii,  pp.  277,  278, 
289-298. 
(a)  41  I).  109  (112). 
(h)  3  St.  492  ;  22  D.  679,  note;  69  D.  389  (391,  392). 

(c)  75  D.  518,  note  ;  87  D.  672;  139  U   S.  24;  35  St. 

385,  note;  43  St.  105. 

(d)  49  1).  604;  85  D.  613,  note. 

(e)  94  1).  378.  not.-;    16  1).  181. 


84  AMERICAN    JURISPRUDENCE.  §  75 

§  75.    Of  the  Officers  and  Agents  of  Corporations. 

A  corporation  can  perform  physical  acts  only  through  the 
instrumentality  of  its  officers  and  agents,  (a)  It  has  no  body 
by  means  of  which  it  can  communicate  with  others  by  speech 
or  writing,  or  do  or  suffer  anything  in  reference  to  them. 
Its  nearest  approach  to  action  is  its  vote,  not  the  expression 
of  its  conclusion  but  the  conclusion  itself ;.  for  the  expression 
is  always  the  act  of  its  members,  who  are  different  persons 
from  the  corporation,  or  of  some  officer  or  agent  acting  in  its 
name,  and  its  conclusion  is  an  intellectual  not  a  physical  act. 
These  officers  and  agents  must  be  appointed  in  accordance 
with  its  charter  and  by-laws  in  order  to  be  clothed  with  lawful 
authority  to  act  on  its  behalf,  but  the  corporation  may  adopt 
and  ratify  actions  beneficial  to  itself  when  performed  by  per- 
sons acting  as  its  agents  without  such  appointment,  and  will 
thenceforth  be  bound  by  those  actions  as  if  the  agents  had 
been  duly  authorized.  (l>)  For  all  the  acts  of  its  officers  and 
agents  within  their  authority  the  corporation  is  liable,  and 
also  for  the  torts  and  crimes  which  they  commit  in  the  fulfil- 
ment of  the  duties  which  its  rules  prescribe,  (c) 

Read  1  Bl.  Com.,  p.  470. 

(«)  16  D.  705;  91  U.  S.  540  (545,  546). 
(6)   5  Wall.  772  (781,  782). 
(c)   13  D.  550. 


§  76.    Of  Acts  Ultra  Vires. 

Corporate  acts  not  warranted  by  the  charter  are  said  to  be 
"acts  ultra  vires,"  and  as  such  are  unlawful  and  void.  The 
corporation  itself  can  take  no  advantage  by  them,  nor  can 
other  persons  dealing  with  it  demand  or  retain  what  it  had 
no  power  to  promise  or  to  give,  (a)  This  rule  is  not  intended, 
however,  to  operate  in  aid  of  fraud  or  injustice.  While  the 
corporation  cannot  be  compelled  to  perform  a  contract  which 
it  had  no  right  to  make,  nor  be  prevented  from  reclaiming 
property  which  it  had  no  right  to  bestow,  yet  persons  who  in 
good  faith  have  sold  and  delivered  to  it  lands  or  goods  which 
it  cannot  restore,  or  paid  it  money  for  property  which  it  has 


§§  76,  77  CORPORATIONS   IN   GENERAL.  85 

pretended  to  convey  to  them,  may,  notwithstanding  the  in- 
validity of  the  express  contract  under  which  these  things  were 
done,  recover  in  equity  or  otherwise  the  value  of  their  lands 
or  goods,  or  the  money  they  have  paid  for  property  that  the 
corporation  could  not  lawfully  transfer,  (b)  For  injuries  to 
the  persons  or  property  of  other  individuals,  either  by  omis- 
sion or  commission,  the  corporation  is  also  liable,  although  the 
wrongful  acts  or  defaults  were  wholly  outside  of  its  charter 
powers,  (c)  Acts  ultra  vires  not  affecting  other  persons  can 
be  complained  of  only  by  the  State.  Such  are  the  acquisition 
of  property  greater  in  amount  or  different  in  kind  from  what 
the  charter  permits,  or  the  embarking  in  enterprises  not 
within  the  purposes  for  which  the  corporation  was  created. 
Violations  of  its  charter  by  these  and  similar  acts  may  indeed 
indirectly  prejudice  the  interests  of  private  individuals,  but 
they  are  neither  breaches  of  contracts  nor  actionable  wrongs, 
and  hence  the  State  alone  can  interfere,  and  by  a  proper 
suit  in  its  own  name,  through  its  own  legal  officers,  can  force 
the  corporation  to  keep  within  its  designated  sphere.  (d)  This 
doctrine  of  ultra  vires  applies  only  to  the  corporate  party  to 
a  transaction,  but  where  all  parties  are  corporations  it  applies 
alike  to  each,  and  the  transaction  will  be  void  if,  by  entering 
into  it,  any  one  of  them  exceeds  its  charter  powers,  (e) 

Read  (a)  15  D.  100,  note:   99  D.  300,  note;    139  U.   S.  24 
(59-61);  1G7  U.  S.  3G2;  70  St.  149,  note. 
(I)   20  R.  504;  101  U.  S.  S3  (85-87). 
(c)   17  R.  702 ;  52  R.  353 ;  100  U.  S.  699. 
(>/)  132  U.  S.  282  (294). 
(e)   139  U.  S.  24  (54). 


§  77.    Of  the  Name  and  Identity  of  a  Corporation. 

A  corporation,  like  a  natural  person,  is  known  to  the  law 
only  by  its  name.  That  name,  selected  originally  by  its 
members  and  sanctioned  by  the  state,  distinguishes  this  arti- 
ficial person  from  all  others,  and  by  it  the  corporation  must 
enter  into  contracts,  sue  ami  be  sued,  ami  receive  and  transfer 
property,  (a)     It  has  no  power  to  change  its  name,  but  for 


86  AMERICAN   JURISPRUDENCE.  §  78 

this  purpose  must  have  recourse  to  the  State,  although  com- 
mon usage  may  give  it  another  name,  and  in  such  usage  it 
may  so  long  acquiesce  as  to  prevent  it  from  disclaiming  the 
new  name  when  charged  with  the  liabilities  which  under  that 
new  name  it  has  incurred.  In  solemn  contracts  and  convey- 
ances the  corporation  is  known  also  by  its  seal.  (b)  No  special 
form  of  seal  is  necessary,  but  whatever  form  is  used  must 
have  been  lawfully  adopted  by  the  corporation,  and  it  must 
be  affixed  by  some  one  who  is  duly  authorized  to  do  so.  (c) 

Read  1  Bl.  Com.,  p.  475  ;  2  Kent,  Lect.  xxxiii,  p.  292 

(a)  9  D.  402 ;  IS  D.  7 

(b)  7  Crunch,  299. 

(c)  14  D.  316  ;  11  D.  551 ;  50  St.  146,  note;  64  St.  257, 

note. 


$  78.    Of  the  Status  of  a  Corporation. 

The  status  of  a  corporation  is  always  abnormal.  Its  im- 
mortality and  intangibility  confer  upon  it  privileges  and  im- 
munities which  no  natural  person  can  possess,  while  the 
limitation  of  its  powers  to  those  enumerated  in  its  charter 
precludes  it  from  rights  and  duties  which  attach  to  every 
natural  person  whose  status  is  normal.  Thus  the  laws  which 
govern  the  transmission  of  property  to  heirs  and  representa- 
tives upon  the  death  of  its  former  owner  have  no  relation  to 
a  corporation,  because  it  never  dies  and  never  parts  with 
property  which  it  has  once  acquired  save  by  its  own  free  act 
or  the  superior  authority  of  the  State.  Because  it  has  no 
body  it  cannot  suffer  corporal  punishment  for  crime,  nor  be 
guilty  of  a  crime  for  which  corporal  punishment  is  the  only 
penalty,  nor  undergo  assaults  or  batteries  or  false  imprison- 
ment, although  it  may  be  punished  for  offences  by  a  fine  or  by 
the  destruction  of  its  corporate  existence  (a),  and  has  a  repu- 
tation which  it  may  protect  by  ordinary  processes  of  law.  (/>) 
Exempt  for  these  reasons  from  the  operation  of  a  large  pro- 
portion of  the  rules  of  law,  every  corporation  is  still  further 
emancipated  by  the  legal  character  imposed  upon  it  by  its 
charter  as  a  charitable  corporation,  a  railroad  corporation,  a 


§  T9  CORPORATIONS  IS  GENERAL.  87 

banking  corporation,  or  whatever  it  ma}-  be,  which,  placing  it 
under  the  control  of  a  special  group  of  laws  framed  for  the 
direction  of  corporations  of  that  peculiar  character,  removes 
it  from  the  influence  of  other  groups  of  laws  by  which  corpor- 
ations of  a  different  character  are  governed.  And,  finally, 
every  corporation  by  the  provisions  of  its  charter  is  differ- 
entiated more  or  less  from  other  corporations  of  the  same  legal 
character  either  by  particular  attributes,  or  as  to  the  place  or 
method  or  degree  in  which  it  may  exercise  its  powers.  Hence 
the  status  of  no  two  corporations  can  be  precisely  the  same, 
for  should  their  charters  be  identical,  except  as  to  the  artifi- 
cial personality  which  they  create,  priority  of  action  on  the 
part  of  either  corporation  in  pursuance  of  its  charter  would 
clothe  it  with  the  right  to  occupy  the  field  in  preference  to  the 
other,  and  at  once  introduce  into  its  status  a  new  element, 
which  would  effectually  distinguish  its  present  powers  and 
duties  from  those  of  its  competitor. 

Read  (a)  87  D.  391  (391,  395). 
(b)  57  D.  400. 


§  79.    Of  the  Domicile  of  a  Corporation. 

The  domicile  of  a  corporation,  sometimes  called  its  "citi- 
zenship," is  in  the  State  from  which  it  receives  its  charter,  and 
in  that  State  only  does  it  legally  subsist,  (a)  To  endow  the 
same  group  of  natural  persons  with  a  corporate  existence  in 
another  State,  they  must  obtain  a  charter  in  the  second  State. 
and  neither  charter  is  aided  by  the  other  either  as  to  the 
extent  or  the  definition  of  its  powers,  (b)  The  members  of 
a  corporation  are  presumed  to  have  their  legal  home  in  the 
same  State,  but  this  is  not  essential  unless  the  laws  of  the 
incorporating  State  require  it.  Acts  of  the  corporation  which 
involve  the  presence  of  the  corporation  itself,  such  as  the 
meetings  and  votings  of  its  members  or  the  enactment  of  by- 
laws, must  also  be  performed  within  the  State  of  its  crea- 
tion^), but  acts  through  officers  or  agents  may  take  place  in 
any  other  State  if  its  laws  permit,  (d)     No  corporation  has  an 


88  AMERICAN   JURISPRUDENCE.  §  80 

inherent  legal  right  to  act  in  any  manner  in  States  other  than 
its  domicile,  though  as  a  general  rule  States  in  their  mutual 
comity  allow  the  corporations  of  other  States  to  transact  busi- 
ness, enter  into  contracts,  and  hold  property  within  their 
borders  upon  such  conditions  as  the  protection  of  their  own 
citizens  seems  to  require  (<?),  but  this  permission  may  at  any 
time  be  withdrawn  and  the  foreign  corporation  be  thenceforth 
excluded  from  their  territory.  (/)  A  corporation  acting  in 
another  State  submits  itself  to  the  local  laws  of  that  State, 
and  may  sue  and  be  sued  in  its  local  courts,  so  far  as  the 
business  there  transacted  or  the  property  there  situated  is 
concerned.  ($)  The  domicile  of  a  corporation  may  be  re- 
stricted to  a  certain  district  in  the  State,  as  a  town  or  city, 
if  its  charter  makes  its  location  in  that  district  an  attribute 
of  its  personality,  and  in  that  case  its  corporate  acts  must  be 
performed  within  the  district  as  well  as  within  the  State.  (//) 

Read  (a)  52  D.  248. 

(b)  1  Black,  286;  88  D.  579. 

(c)  83  D.  329;  46  D.  619  ;  118  U.  S.  161  (168-170). 

(d)  33  D.  481. 

(0   13  Pet.  519;  8  Wall.  168;   54  D.  522;  95  D.  529, 

note. 
(/)  125  U.  S.  181  (188-190). 
(g)  96  D.  331,  note  ;  171  U.  S.  658. 
(A)  73  D.  319. 


§  80.    Of  the  Control  of  the  State  over  its  Corporations. 

A  corporation  is  always  subject  to  the  legislative  control  of 
the  State  from  which  its  personality  and  powers  were  both 
derived,  (a)  Under  the  fundamental  principle  that  no  legis- 
lative act  can  trammel  the  freedom  of  a  subsequent  legisla- 
ture, it  might  be  held  that  the  subjection  of  a  corporation  to 
legislative  control  was  absolute,  and  that  its  privileges  might 
be  at  any  time  abolished,  and  even  its  corporate  personality 
destroyed.  But  under  that  provision  of  the  Federal  Consti- 
tution, which  forbids  our  legislatures  to  pass  any  law  impair- 
ing  the   obligation  of  contracts,   it  is  now   held,   wisely   or 


§  80  CORPORATIONS   IN   GENERAL.  89 

unwisely  as  the  event  may  prove,  that  where  the  charter  of 
a. corporation  is  granted  by  the  State  with  the  manifest  ex- 
pectation that  it  will  be  acted  on  by  the  corporation  in  such  a 
manner  that  its  subsequent  change  or  withdrawal  would 
prejudice  the  interests  of  the  corporate  body,  and  such  action 
accordingly  takes  place,  an  inviolable  contract  has  been  formed 
between  the  corporation  and  the  State  that  the  corporation 
shall  continue  to  enjoy  the  privileges  enumerated  in  its  char- 
ter so  long  as  it  does  not  neglect  or  abuse  its  powers,  (b)  This 
doctrine  does  not,  however,  deprive  a  State  of  all  authority 
over  its  corporations.  Corporations  whose  charters  are  not 
contracts,  either  because  they  create  no  obligations  of  a  con- 
tract nature,  or  because  contract  charters  had  been  previously 
forbidden  by  the  State  constitution  or  its  general  laws,  and 
corporations  whose  charters  contain  provisions  for  their  repeal 
or  modification  at  the  discretion  of  future  legislative  bodies, 
are  entirely  at  the  mercy  of  the  State,  and  their  charters  may 
be  altered  or  recalled  at  its  pleasure,  (r)  Charters  which  are 
contracts  can  be  amended  and  the  privileges  of  the  corpora- 
tion be  increased  or  diminished  if  the  purposes  for  which  it 
was  organized  are  not  defeated  and  its  power  to  accomplish 
them  is  not  curtailed,  (d)  Such  limitations  or  extensions  of 
charter  powers  may  be  made  by  the  legislature  either  by 
alterations  in  the  charter  of  the  corporation,  or  by  general 
laws  applying  to  all  corporate  bodies;  but  a  charter  issuing 
from  the  legislature  in  the  form  of  a  special  statute  is  not 
affected  by  subsequent  inconsistent  legislation  unless  such  is 
the  manifest  intent  of  the  later  legislative  body.  (>■)  The 
franchises  and  other  property  of  corporations,  like  the  prop- 
erty of  a  natural  person,  are  always  liable  to  be  appropriated 
by  the  State  for  public  use  whenever  in  the  judgment  of  the 
State  such  appropriation  becomes  necessary.  (/) 

Read  (a)  62  1).  025. 

(6)  4  Wheat.  518;  13  Wall.  190  (212-214). 

(c)   90  D.  017. 

00  50  1).  171;  128  U.  S.  174. 

(e)  53  1).  450,  note  ;  17  Wall.  425. 

(/)  35  D.  166. 


90  AMERICAN   JURISPRUDENCE,  §  81 

§  81.    Of  the  Combination  and  Consolidation  of  Corporations. 

The  control  of  the  State  over  its  corporations  extends  to 
changes  in  their  personality  as  well  as  in  their  powers.  It 
may  create  a  new  corporate  personality  out  of  two  or  more 
existing  corporations  by  conferring  upon  them  another  char- 
ter whereby  the  former  corporations  are  made  members  of  a 
new  corporation,  preserving  their  distinct  corporate  person- 
alities but  collectively  enjoying  the  privileges  bestowed  by 
the  new  charter,  or  it  may  consolidate  the  former  corporate 
personalities  into  a  new  corporate  personality  in  which  the 
former  corporations  are  completely  merged.  Whether  a 
union  of  corporations  produces  the 'first  or  the  second  of  these 
results  depends  upon  the  agreement  of  the  parties  and  the 
terms  of  the  legislative  act  by  which  it  is  effected,  (a)  In 
the  first  (which,  to  distinguish  it  from  the  second,  might  be 
called  a  "combination  of  corporations"),  the  members  of  the 
new  corporation  are  the  old  corporate  bodies,  not  the  natural 
persons  of  whom  those  bodies  are  severally  composed.  These 
still  remain  members  of  their  respective  corporations,  and 
only  indirectly  and  through  the  acts  of  the  corporations  to 
which  they  belong  do  they  participate  in  the  management  of 
the  new  corporation.  The  old  corporations  likewise  retain 
their  ancient  rights  and  are  subject  to  their  former  liabilities, 
except  so  far  as  these  are  expressly  or  by  necessary  implica- 
tion varied  by  the  combination  charter.  But  in  a  consoli- 
dation of  corporations  the  old  corporations  disappear,  and 
their  privileges  and  responsibilities,  so  far  as  they  exist  at  all 
under  the  new  charter,  are  transferred  to  the  new  corporation, 
of  which  also  their  members  become  members  immediately 
directing  and  controlling  its  affairs,  (b)  But  exemptions  from 
taxation  and  other  special  immunities  enjoyed  by  the  old 
corporations  are  not  transmitted  to  the  new  unless  expressly 
granted  to  it  by  the  legislature,  (c)  As  the  bestowal  of  a  com- 
bination charter  does  not  affect  the  corporate  franchises  of  the 
individual  corporations  of  which  the  combination  is  composed, 
these  individual  corporations  may  or  may  not  be  domiciled 
within  the  State  by  which  the  combination  is  created.  In  a 
consolidation,  however,  the  former  corporate  franchises  are 


§  82  CORPORATIONS    IN    GENERAL.  91 

withdrawn,  and,  as  such  withdrawal  can  be  effected  only  by 
the  State  which  bestowed  them,  the  recipients  of  a  consolida- 
tion charter  must  all  be  corporations  of  the  State  from  which 
the  charter  issues,  or  the  new  charter  must  be  separately 
granted  by  all  the  States  to  which  these  corporations  may 
belong,  (d)  A  consolidation  charter  granted  by  two  or  more 
independent  States  not  only  creates  a  franchise,  but  constitutes 
a  compact  between  the  States  themselves  to  recognize  and 
protect  the  charter  privileges  of  the  new  corporation  within 
their  respective  jurisdictions,  (e)  Without  the  grant  of  a  new 
charter  the  union  of  the  names,  officers,  enterprises,  or  prop- 
erty of  several  corporations  is  a  mere  business  arrangement 
which  neither  affects  their  personality  nor  adds  to  nor  dimin- 
ishes their  powers  (/) ;  for  no  corporate  relation  can  be  es- 
tablished even  between  existing  corporations  without  the 
action  of  the  State,  whatever  agreement  the  several  corpora- 
tions may  have  made  between  themselves,  (g)  Whether  con- 
solidation can  take  place  without  the  unanimous  consent  of 
all  the  members  of  the  uniting  corporations  has  been  vari- 
ously decided.  (//) 

Read  (a)  92  U.  S.  G65  ;  114U.  S.  587  (595)  ;  152  U.  S.  301. 
(6)   98  U.  S.  359;  79  I).  418,  note;   95  U.  S.  319;  39 
St.  381  ;  59  St.  543,  note;  95  D.  654. 

(c)  96  U.  S.  499;  117  U.  S.  139. 

(d)  12  Wall.  65  (82). 

(e)  53  D.  534  (536). 
(/)  136  U.  S.  356. 

(g)  35  St.  681  ;  101  U.  S.  677  (701-703). 
(A)  1  Wall.  25 ;  72  D.  685. 


§  82.    Of  the  Dissolution  of  Corporations. 

The  supreme  exercise  of  legislative  authority  over  a  cor- 
poration is  its  dissolution,  (n)  Every  corporation  receives 
its  existence  from  the  State  upon  the  condition  that  it  will 
use  and  not  abuse  its  charter  powers.  No  matter  how  largely 
private  interests  may  seem  to  be  promoted  by  the  grant  of 
i  trporate  franchises,  the  creation  of  these  immortal  and  in- 


92  AMERICAN   JURISPRUDENCE.  §  83 

tangible  personalities  is  justified  only  by  the  assumption  that 
they  do,  to  some  extent,  redound  to  the  benefit  of  the  public, 
and  this  would  be  impossible  if  they  did  not  act  at  all,  or  if 
they  acted  in  defiapce  of  the  limitations  prescribed  by  the 
State  at  their  incorporation.  The  failure  of  a  corporation  to 
exercise  its  powers  (b)  is  thus  a  breach  of  the  fundamental 
condition  upon  which  they  were  granted  equally  with  their 
exercise  in  an  unlawful  manner  or  degree  (<?) ;  and  in  either 
case  the  State  may,  if  it  pleases,  treat  the  breach  of  condition 
as  a  ground  of  forfeiture  and  repeal  the  grant.  This  is  a 
matter,  however,  entirely  for  the  State,  which  must  proceed 
in  its  own  name  and  through  its  own  officers  to  dissolve  the 
corporation,  though  it  may  act  at  the  instigation  or  relation  of 
private  individuals  whose  rights  are  prejudiced  by  the  corpor- 
ate inaction  or  abuse,  (d)  According  to  the  ancient  rules  of 
our  law,  upon  the  dissolution  of  a  corporation  its  real  prop- 
erty reverted  to  the  donor  or  his  heirs,  its  personal  property 
vested  in  the  State,  and  its  contract  rights  and  obligations 
were  extinguished,  (e)  In  equity  it  is  now  regarded  as  a 
trustee  for  its  beneficiaries  or  members,  and  after  its  dissolu- 
tion new  officers  are  appointed  by  the  court  to  carry  out  the 
trust  and  administer  its  assets  for  the  benefit  of  those  who 
may  appear  to  be  entitled  to  them.  (/) 

Read  1  Bl.  Com.,  pp.  484,  485;  2  Kent,  Lect.  xxxiii,  pp.  SOS- 
SIS. 

(a)  35  D  292 ;  33  D.  656  (660). 

(b)  18  D.  454;  35  D.  551;  41  D.  109. 

(c)  53  D.  106. 

(d)  96  D.  747,  note ;  41  D.  690;  94  D.  84. 
(0  12  D.  234,  note;  57  D.  168;  52  D.  412. 
(/)  8  Pet.  281  ;  133  U.  S.  50 ;  18  St.  192  (211). 


§  83.    Of  the  Distinction  between   the   Personalities  of  a  Cor- 
poration and  its  Members. 

The  complete  distinction  between  the  person  of  a  corpora- 
tion and  the  persons  of  its  members  is  evident  from  the  fore- 
going description  of  its  character  and  attributes      Its  reason, 


§  84  CORPORATIONS   IN   GENERAL.  03 

its  will,  its  actions,  are  all  separate  from  theirs.  Its  prop- 
erty is  not  their  property  (a);  its  contracts  are  not  their  con- 
tracts (b) ;  its  debts  are  not  their  debts,  if  they  are  not  expressly 
made  so  by  its  charter.  Unless  appointed  by  the  corporation 
as  its  agent,  no  knowledge  which  a  member  possesses,  no  act 
which  he  performs,  can  be  imputed  to  it  as  its  act  or  knowl- 
edge (c);  and  even  were  all  its  members  to  unite  in  an  action, 
such  as  the  signing  of  a  deed,  the  action  would  not  be  that  of 
the  corporate  body  nor  in  any  way  affect  its  rights.  As  a 
distinct  person  from  its  members  it  may  sue  them  at  law  or 
in  equity,  and  they  in  turn  may  institute  proceedings  against 
it  to  recover  claims  which  they  may  hold  against  it  or  to 
prevent  it  from  violating  its  charter  powers,  (d)  It  can  estop 
itself  by  its  own  conduct  or  agreement  from  asserting  its 
privileges  against  particular  individuals  (e) ;  but  the  motives 
which  impel  it  to  perform  its  lawful  acts  are  not  open  to 
inquiry.  (/)  It  is  entitled  under  the  Fourteenth  Amendment 
to  the  Federal  Constitution  to  the  protection  of  itself  and  its 
property  in  all  our  States,  and  its  identity  remains  unchanged, 
notwithstanding  any  legislative  increase  or  diminution  of  its 
powers,  until  its  personality  is  merged  by  the  State  in  that 
of  a  new  corporation  or  its  charter  is  formally  repealed,  (g) 

Read  (a)  140  U.  S.  304  ;  13  St.  23  ;  34  St.  541. 

(b)  13  Pet.  519  (586,  587). 

(c)  36  D.  1S6. 

(rf)  IS  How.  331  (341-344). 
(0  10  Wall.  004(614-646). 
(/)  105  U.  S.  605. 
(g)  125  U.  S.  181  (187,  188). 


§  84.    Of  Corporations  De  Jure.    ■ 

The  foregoing  rules  are  applicable  to  their  full  extent  only 
to  perfect  corporations,  or,  as  they  are  technically  called,  cor- 
porations de  jure.  A  corporation  de  jure  is  one  which  has 
been  created  and  has  duly  organized  in  all  respects  in  con- 
formity  to   law.     It   presupposes   that  a   charter   has   been 


94  AMERICAN   JURISPRUDENCE.  §  85 

granted  to  the  individuals  of  whom  the  corporation  is  com- 
posed, that  the  governmental  agency  from  which  the  charter 
issued  had  the  power  to  confer  the  precise  corporate  fran- 
chise which  it  has  attempted  to  bestow,  that  the  members  of 
the  corporate  body  have  accepted  the  charter  and  have  com- 
plied with  every  requirement  necessary  to  render  their  title  to 
the  franchise  indisputable  and  complete.  Any  defect  in  any 
of  these  particulars  prevents  the  association  from  attaining 
and  enjoying  in  their  ordinary  measure  the  prerogatives- 
legally  attached  to  corporate  existence  and  leaves  it  in  the 
imperfect  condition  of  a  de  facto  corporation,  a  quasi  corpora- 
tion, or  an  association  wholly  unincorporated,  (a) 

Read  2  Kent,  Lect.  xxxiii,  pp.  244-276. 
(a)  42  St.  677. 


§  85.    Of  Corporations  De  Facto. 

A  de  facto  corporation  is  an  association  of  individuals  to 
whom  the  State  has  granted  through  some  competent  govern- 
mental agency  an  apparently  valid  charter  under  which  the 
association  has  organized  and  acted  as  a  corporation  de  jure, 
but  in  whom,  on  account  of  some  defect  either  in  the  charter 
itself  or  in  the  mode  of  granting  it,  or  in  the  method  of  its 
acceptance  by  the  association,  or  in  their  organization  under  it, 
no  indefeasible  right  to  maintain  and  exercise  their  supposed 
corporate  privileges  has  ever  legally  been  vested,  (a)  As 
between  the  State  and  such  an  association  no  corporate  fran- 
chise exists,  and  their  right  to  act  as  a  corporate  body  may  at 
any  time  be  called  in  question  by  the  State  and  their  exercise 
of  corporate  privileges  be  prohibited. (b)  But  inasmuch  as  the 
State  could  if  it  chose  have  created  such  a  corporation  and 
could  have  endowed  it  with  the  powers  named  in  its  charter 
and  has  evidently  attempted  so  to  do,  and  the  members- in 
their  turn  have  endeavored  to  comply  with  its  conditions  and 
acquire  a  perfect  title  to  the  franchise,  #11  private  parties  are 
warranted  in  assuming,  until  the  State  does  interfere,  that  the 
corporate  character  of  the  association  is  unassailable,  and  may 
therefore  deal  with  it  as  if  it  were  a  corporation  de  jure  with- 


§  86  CORPORATIONS    IN    GENERAL.  95 

out  the  risk  that  on  account  of  its  defective  personality  either 
its  acts  or  theirs  will  be  declared  invalid,  (c) 

Read  (a)  47  St.  153,  note;  41  St.  151:  38  St.  552. 

(b)  33  St.  172,  note. 

(c)  29  St.  596,  note ;  26  St.  743 ;  24  St.  887. 


§  86.    Of  Quasi  Corporations. 

A  quasi  corporation  is  an  association  of  individuals  which, 
although  unincorporated,  acts  customarily  or  necessarily  as  a 
unitary  body,  and  which  either  by  statute  or  by  the  doctrines 
of  the  unwritten  law  is  recognized  as  possessing,  in  reference 
to  these  necessary  or  customary  acts,  the  attributes  of  a  true 
corporation.  Generally  this  recognition  is  extended  by  the 
law  only  to  associations  to  which  some  public  interest  or  duty 
has  been  committed,  such  as  towns,  counties,  or  school  dis- 
tricts, though  the  same  character  has  sometimes  been  imputed 
to  more  private  organizations,  such  as  religious  congregations. 
These  associations  possess  no  corporate  personality  in  which 
the  individual  personalities  of  their  members  have  been  merged. 
On  the  contrary  their  members  are  held  by  certain  courts  to 
be  the  ultimate  parties  to  all  transactions  into  which  the  asso- 
ciation enters,  and  to  be  personally  bound  by  all  its  obligations. 
But  since  the  association  enjoys  an  immortality  independent 
of  the  changes  in  its  membership,  governs  itself  by  majorities 
and  not  by  universal  consent,  transacts  business  only  through 
officers  and  agents,  and  has  a  common  name  in  which  it  can 
contract,  or  sue  and  be  sued,  or  acquire,  hold,  and  transfer 
property,  it  has  to  a  considerable  extent  a  corporate  aspect, 
and  when  its  unitary  acts  are  authorized  by  statute  or  recog- 
nized as  valid  by  the  courts,  the  corporate  character  of  the 
association  is  to  a  similar  extent  affirmed.  Prior  to  the  reign 
of  Henry  VI.  (a.  i>.  1422)  the  minor  political  subdivisions 
of  England  were  usually  regarded  as  quasi  corporations,  and 
though  since  that  date  the  practice  of  granting  special  muni- 
cipal charters  to  these  subdivisions  has  been  gradually  in- 
creasing,  both   in  England  and   this    country   instances    still 


96  AMERICAN   JURISPRUDENCE.  §§  87,  88 

occur  to  which  the  law  of   these  imperfect   corporations   is 
applied,  (a) 

Read  (a)  13  D.  522,  note;  31  St.  63;  68  D.  290,  note;  62  D. 
424  (449). 


§  87.    Of  Unincorporated  Associations. 

An  unincorporated  association  is  a  group  of  individuals 
united  together  for  a  common  purpose  but  without  a  charter, 
and  to  whom  the  law  will  not  impute  either  an  actual  or  qual- 
ified corporate  existence.  These  associations  are,  however, 
fully  recognized  by  the  law  as  and  for  what  they  truly  are, 
though  their  precise  legal  character  it  is  not  in  every  case 
easy  to  define.  They  possess  some  of  the  attributes  of  a  part- 
nership, some  also  of  the  features  of  a  tenancy  in  common. 
Their  members  can  act  together,  not  as  a  single  personality 
under  the  name  of  the  association,  but  in  the  names  of  all 
enumeratively  or  in  the  name  of  one  "and  his  associates," 
and  in  this  manner  they  can  purchase  and  sell  property,  make 
contracts,  and  sue  and  be  sued.  But  one  has  no  implied 
authority  to  bind  the  rest,  and  when  appointed  as  the  agent 
of  the  association  his  acts  oblige  only  himself  and  those  other 
members  who  concurred  in  his  appointment  or  in  the  special 
enterprise  to  promote  which  his  appointment  was  made.  The 
liability  of  the  members  who  participate  in  any  transaction 
of  the  association  resulting  in  a  debt  due  to  a  third  party  is 
joint  and  several,  and  the  whole  amount  may  be  collected  out 
of  any  one  of  them,  leaving  him  to  proceed  against  the  others 
for  the  payment  of  their  shares,  (a) 

Read  («)  12  D.  495,  note  ;  28  D.  650 ;  59  D.  708,  note ;  95  D. 
107 ;  50  R.  505  ;  52  R.  436  ;  39  R.  818  ;  59  St.  193, 

note ;  68  St.  852,  note. 


§  88.    Of  the  Classes  of  Corporations:  Corporations  Sole:  Cor- 
porations Aggregate. 
The  division    of   corporations  into   corporations   sole   and 
corporations  aggregate  is  based  upon  the  number  of  natural 


§  89  CORPORATIONS    IN    GENERAL.  97 

persons  of  whom  the  corporation  is  legally  composed.  A 
corporation  sole  is  constituted  when  a  charter  is  granted  to  a 
single  individual;  a  corporation  aggregate,  when  the  grantee 
is  an  association  of  two  or  more  individuals.  Corporations 
sole,  though  common  in  England,  rarely  occur  in  this  country. 
They  are  usually  created  for  official  purposes,  in  order  that 
the  powers  and  property  connected  with  some  public  office  may 
pass  without  a  new  grant  from  one  incumbent  to  his  imme- 
diate successor.  But  a  State,  unless  prohibited  by  its  Con- 
stitution, may  establish  such  corporations  for  commercial  or 
ecclesiastical  as  well  as  for  political  purposes,  at  its  discre- 
tion, (a)  The  legal  character  of  a  corporation  aggregate  is 
not  changed  by  the  reduction  of  its  membership  to  a  single 
individual,  unless  according  to  its  charter  the  vanished  mem- 
bers were  integral  parts  of  the  corporate  personality,  without 
whom  the  corporation  itself  cannot  exist. 

Read  1  Bl.  Com.,  pp.  469,  470;  2  Kent,  Lect.  xxxiii,  pp.  273, 
274. 
(a)  33  D.  656. 


§  89.  Of  the  Classes  of  Corporations  Public,  Private,  and  Quasi 
Public  Corporations. 
Corporations  are  divided,  according  to  their  essential  char- 
acter, into  Public  Corporations  and  Private  Corporations.  A 
public  corporation  is  a  political  body  established  by  the  State 
for  governmental  purposes,  and  organizing  the  people  inhab- 
iting a  certain  portion  of  its  territory  under  a  subordinate 
government  exercising  legislative,  judicial,  and  executive 
powers,  in  order  that  their  laws  may  be  suited  to  their  local 
conditions.  A  private  corporation  has  no  political  character 
and  exercises  no  governmental  functions  except  over  its  own 
private  affairs,  but  is  created  for  the  promotion  of  some 
interest  in  which  its  members  are  directly  or  officially  con- 
cerned. A  quasi  public  corporation  is  a  private  corporation 
to  which,  on  account  of  the  value  to  tin-  public  of  the  enter- 
prise in  which  it  is  engaged,  certain  privileges  have  been 
•conceded  which  ordinarily  vest  only   in  the   St.ttr  or  in  the 


08  AMERICAN    JURISPRUDENCE.  §  90 

public  corporations  to  whom  its  governmental  powers  are 
delegated.  The  rules  to  which  these  three  classes  of  corpora- 
tions are  subjected  differ  in  many  important  details,  and 
render  necessary  a  more  minute  description  of  each  class  and 
the  particular  statement  of  its  laws,  (a) 

Read  2  Kent,  Lect.  xxxiii,  pp.  274-276. 

(a)  99  D.  300  (306,  307) ;  56  D.  666  (669). 


SECTION   II. 

OF    PRIVATE    CORPORATIONS. 

§  90.    Of  the  Attributes  of  Private  Corporations. 

All  corporate  bodies  except  those  which  have  been  created 
for  political  purposes  as  subordinate  divisions  and  instru- 
ments of  the  government  are  private  corporations,  whatever 
be  their  character,  their  objects,  or  their  privileges.  It  is  to 
this  class  of  corporations  that  the  general  rules  of  corporation 
law  particularly  apply.  Their  powers  are  limited  to  those 
enumerated  in  their  charters,  which  are  strictly  construed 
against  them  in  the  light  of  the  law  as  it  existed  when  the 
charters  were  granted.  Their  charters  are  in  most  cases  con- 
tracts which  the  State  cannot  impair  by  subsequent  legisla- 
tion unless  it  has  reserved  the  right  to  do  so,  and  must  be 
accepted  by  the  corporation  membership  before  they  can  take 
effect.  The  power  to  enact  by-laws,  appoint  officers,  make 
contracts,  and  hold  property  for  the  purposes  indicated  in 
their  charters,  resides  by  implication  in  such  corporations 
where  it  is  not  expressed.  They  act  within  the  corporate 
body  only  by  a  majority  vote,  and  without  it  only  through 
their  officers  and  agents.  They  are  liable  for  their  torts  com- 
mitted through  their  agents  (a),  although  involving  mental 
purpose  and  intent,  and  for  such  crimes  as  can  be  perpetrated 
without  actual  violence,  (b)  They  are  subject  to  legislative 
control,  not  infringing  their  charter  rights,  and  their  corporate 
franchises  as  well  as  their  property  may  be  appropriated  by 
the  State,  either  directly  or  through  the  agency  of  other  cor- 
porations.    Finalty,  their  right  to  their  charters  may  be  for 


§  91  PRIVATE   CORPORATIONS.  99 

feited  by  the  non-user  or  mis-user  of  their  powers,  and  the 
State  may  then  repeal  the  charter  and  dissolve  the  corpora- 
tion by  due  process  of  law. 

Read  (a)  13  D.  588,  note  ;  58  D.  439  ;  91  D.  672 ;  108  U.  S. 
317. 
(ft)  37  D.  38-,  87  D.  391 ;  100  D.  570. 


§  91.    Of  the  Organization  of  Private  Corporations. 

A  private  corporation  is  formed  by  the  voluntary  agree- 
ment of  its  future  members  to  unite  in  an  association  for  a 
designated  purpose,  followed  by  their  application  to  the  State 
in  the  customary  manner  for  a  charter,  by  its  grant  and  their 
acceptance,  and  by  their  organization  under  it  as  a  corporate 
body.  Their  acceptance  of  the  charter  and  their  organization 
under  it  by  framing  by-laws  and  electing  officers  mark  the 
date  when  the  existence  of  the  corporate  personality  be- 
gins, (a)  Prior  to  that  date  their  acts  are  those  of  an  unin- 
corporated association,  or  of  independent  individuals,  and  do 
not  bind  the  corporation  unless  adopted  and  ratified  by  it  after 
its  organization  is  complete,  (ft)  Promoters  of  the  enterprise, 
whether  becoming  members  of  the  corporation  at  its  organi- 
zation or  not,  are  bound  to  good  faith  with  it  in  all  their 
dealing,  and  promises  to  them  obtained  by  fraudulent  silence\ 
or  misrepresentation  cannot  be  enforced,  (c)  In  enacting  by- 1 
laws,  the  general  law,  the  charter,  and  the  purposes  of  the  \ 
corporation  must  be  kept  in  view,  and  any  reasonable  by-law 
consonant  with  these  is  binding  on  its  members,  (d)  The  usual  \ 
officers  of  a  private  corporation  are  a  President.  Secretary, 
Treasurer,  and  a  Board  of  Directors,  whose  duties  are  indi- 
cated by  their  names  and  are  further  specified  in  the  by-laws 
under  which  they  are  appointed.  The  management  of  the  cor- 
porate affairs  is  mainly  conducted  by  these  officers;  meetings 
of  the  entire  corporation  being  held  at  such  intervals  as  the 
law  or  convenience  may  determine,  (c)  The  powers  confided 
to  these  officers  are  held  and  exercised  by  them,  not  for  their 
own  benefit,  but  in  trust  for  the  corporation  as  a  whole,  and 
any  abuse  of  their  authority  may  be  restrained  and  remedied 


100  AMERICAN   JURISPRUDENCE.  §§  92,  93 

by  the  corporation  either  through  its  own  action  or  through 
the  instrumentality  of  the  courts.  (/) 

Read  (a)  33  St.  355;  41  St.  451. 

(b)  17  D.  159;  10  R.  587  ;  21  R.  39. 

(c)  31  St.  G53 ;  40  St.  837  ;  42  St.  159. 

(tf)  43  St.  147,  note;  6  U.  619  (625)  ;  43  D.  457. 
(e)  68  D.  544  ;  27  D.  33,  note. 
(/)  53  D.  624. 


§  92.    Of  the  Powers  of  Private  Corporations. 

The  legal  character  and  corporate  capacity  of  a  private 
corporation  being  defined  by  its  charter  cannot  be  varied  by 
any  other  authority  than  that  by  which  they  were  originally 
conferred.  Wherever  the  corporation  may  transact  its  busi- 
ness through  its  officers  and  agents,  it  is  there  the  same  cor- 
poration that  it  is  in  the  place  of  its  creation;  and  every 
limitation  of  its  powers  by  its  charter,  or  by  the  general  laws 
of  the  State  of  its  creation,  follows  it  in  every  other  State  in 
which  its  property  or  its  interests  reside,  (a)  By  the  laws  of 
such  other  States  its  rights  may  be  more  restricted  than  they 
are  in  its  domicile,  but  they  cannot  be  enlarged.  Hence  no 
concession  by  one  State  to  the  corporations  of  other  States 
can  give  them  a  corporate  existence  in  its  territory  or  make 
their  corporate  action  therein  valid,  although  it  may  permit 
their  officers  and  agents  to  dwell  within  its  borders  and  from 
thence  direct  the  management  of  its  affairs,  and  may  allow 
the  corporations  to  hold  such  lands  or  other  property  as  their 
corporate  capacity  authorizes  them  to  acquire. 
Read  (a)  22  R.  133  ;  46  St.  285. 


§  93.    Of  Eleemosynary  Corporations. 

Private  corporations  are  divisible  into  Civil  Corporations 
and  Eleemosynary  Corporations.  A  civil  corporation  is 
established  for  the  benefit  of  its  own  members  or  for  the  pro- 
motion of  a  cause  in  which  both  its  own  members  and  other 
persons  are  interested.     An  eleemosynary  corporation  exists 


§  93  PRIVATE   CORPORATIONS.  101 

exclusively  for  charitable  purposes ;  that  is,  for  purposes  con- 
ducive to  the  bodily,  intellectual,  or  spiritual  welfare  of  its 
beneficiaries.  Hospitals,  asylums,  free  schools,  missionary 
societies,  are  instances  of  these ;  but  not  parishes,  nor  colleges 
supported  by  tuition  fees,  nor  private  sanitariums,  (a)  In  el- 
eemosynary corporations,  and  in  those  created  for  the  promo- 
tion of  a  cause,  the  corporation,  in  addition  to  the  laws  which 
govern  it  as  a  corporate  body,  becomes  subject  also  to  the  law 
of  trusts,  (b)  The  powers  and  the  property  of  such  corpora- 
tions are  vested  in  them  for  the  sake  and  in  the  right  of  the 
beneficial  enterprise,  and  the  corporation  is  compelled  to  hold 
and  use  them  for  such  purposes  and  for  such  purposes  alone. 
Thus,  for  example,  a  religious  society  established  and  endowed 
with  property  for  the  propagation  of  certain  doctrines,  or  as  a 
branch  of  a  larger  religious  body,  cannot  employ  its  property 
or  corporate  privileges  in  the  promulgation  of  different  doc- 
trines nor  sever  its  connection  with  the  larger  body  though  all 
its  members  have  changed  their  belief  and  desire  to  alter  their 
ecclesiastical  affiliations,  (c)  An  eleemosynary  corporation, 
founded  and  supplied  by  its  projectors  with  funds  for  the  sup- 
port of  orphans  or  the  insane  or  paupers,  or  for  the  healing 
and  care  of  the  sick,  or  other  charitable  objects,  violates  its 
trust  by  any  application  of  its  means  to  other  purposes  besides 
exceeding  its  specific  charter  powers.  To  keep  such  corpora- 
tions within  the  limits  prescribed  by  their  founders,  a  board 
of  visitors  is  sometimes  appointed  by  their  charters,  who  have 
authority  to  correct  abuses  whenever  they  arise(W),  and  at  all 
times  the  courts  of  equity  are  open  to  the  proper  beneficiaries 
of  such  a  corporation,  who  have  reason  to  complain  of  the 
management  of  its  affairs,  and  can  take  any  steps  that  may  be 
necessary  to  prevent  a  further  perversion  of  its  funds,  (e) 

Read  1  Bl.  Com.,  pp.  470,  171,  480-484. 

(a)  1  Wheat.  518  (629,  038);  31  D.  72  (80-91);  6  St 

715. 

(b)  07  D.  100. 

(c)  13  Wall.  070  (722-732). 
(</)  29  D.  oft  1. 

(e)  84  D.  170. 


102  AMERICAN    JURISPRUDENCE.  §§  94,  95 

§  94.    Of  Civil  Corporations. 

A  corporation  created  for  the  exclusive  benefit  of  its  mem- 
bers may  have  in  view  their  intellectual,  moral,  social,  phys- 
ical, or  pecuniary  interests,  or  any  other  matter  conducive  to 
their  welfare  or  their  pleasure  and  not  forbidden  by  the  law. 
The  details  of  such  corporations  —  their  organization,  by-laws, 
officers,  property,  and  methods  of  operation  —  conform  to 
their  particular  objects  and  consequently  are  of  great  variety. 
What  has  been  already  stated  as  to  the  general  law  of  corpor- 
ations embraces,  in  principle  at  least,  the  body  of  legal  rules 
by  which  all  Of  them  are  governed,  with  the  exception  of  that 
class  of  business  corporations  known  as  "stock  corporations," 
of  which  a  more  extended  description  is  required. 


§  95.   Of  Stock  Corporations. 

A  stock  corporation  is  intended  to  enable  a  number  of  per- 
sons to  unite  their  money  in  a  business  enterprise  in  which 
they  incur  no  liability  beyond  their  investment  and  from 
which  they  can  at  any  time  retire  by  the  transfer  of  their  in- 
terests to  other  persons.  In  its  combination  of  persons  and 
property  it  resembles  a  partnership,  but  in  its  restriction  of 
their  liability  for  its  debts  and  their  power  to  substitute  other 
persons  for  themselves  as  members  of  the  association,  it  is 
entirely  different.  The  mode  of  its  formation  is  usually  as 
follows:  Its  projectors  having  determined  the  amount  of  cap- 
ital required  for  the  transaction  of  the  contemplated  business 
and  fixed  the  value  of  the  equal  shares  into  which  it  is  to  be 
divided,  subscribe  for  such  a  number  of  these  shares  as  they 
individually  desire  until  the  whole  are  taken,  the  payment 
for  which  they  make  in  advance  or  agree  to  make  to  the  cor- 
poration whenever  called  upon  in  pursuance  of  its  charter  and 
by-laws.  Unless  a  charter  has  been  already  granted  to  the 
proposed  corporation  one  is  now  obtained,  and  the  corporation 
organizes  under  it  by  enacting  by-laws  and  appointing  officers. 
Upon  the  completion  of  its  organization  the  subscriptions  to 
its  stock,  which  hitherto  have  been  contingent  and  could  be 
withdrawn,  become  vested  rights,  and  it  may  call  upon  its 


§  96  PRIVATE   CORPORATIONS.  103 

members  for  the  price  of  their  respective  shares  with  which 
to  commence  its  business,  and  may  collect  the  amounts  by  suit 
at  law  or  by  a  forfeiture  and  sale  of  the  shares,  (a)  If  the 
business  is  profitable,  a  dividend  of  the  profits  is  declared, 
from  time  to  time,  in  favor  of  each  share,  and  paid  to  the 
stockholder  to  whom  the  share  may  then  belong  (b),  and 
should  the  corporation  cease  its  business  and  wind  up  its 
affairs,  the  surplus  of  its  property  remaining  after  the  pay- 
ment of  its  debts  is  divided  among  the  then  existing  stock- 
holders according  to  the  number  of  shares  of  stock  which 
each  may  then  possess.  During  the  existence  of  the  corpo- 
ration any  stockholder  may  sell  the  whole  or  any  number  of 
his  shares  to  any  other  person,  who  by  the  transfer  takes 
the  place  of  the  vendor  in  the  corporation  and  succeeds  to 
all  his  rights  and  liabilities. 

Read  (a)  5  D.  638;  8  D.  128;  60  D.  257;  42  St.  379}  47  St. 

323 ;  44  St.  838. 
(b)  99  D.  758,  note;  153  U.  S.  486  (496-499). 


§  96.    Of  Shares  ot  Stock. 

This  outline  of  the  history  of  a  stock  corporation  explains 
the  legal  character  of  a  share  of  stock  and  its  relations  to  the 
corporate  property  and  business.  A  share  of  stock  is  not  a 
share  in  the  property  owned  by  the  corporation,  for  in  these 
corporations,  as  in  all  others,  the  personality,  rights,  obliga- 
tions, and  property  of  the  corporation  are  entirely  distinct 
from  those  of  its  members.  A  share  of  stock  is  a  chose  in 
action;  that  is,  it  is  a  right  to  a  thing  as  distinguished  from 
tin'  thing  itself,  and  the  things  to  which  a  share  of  stock 
is  the  right  are,  first  a  specific  proportion  of  the  profits  of 
the  corporate  business;  second,  a  specific  proportion  of  the 
surplus  property  of  the  corporation  after  it  ceases  to  exist  and 
its  debts  arc  paid;  and  third,  the  right  to  exercise  a  degree  of 
influence  in  the  general  direction  of  corporate  affairs  measured 
by  the  ratio  which  one  share  bears  to  the  whole  number  of 
shares,  (a)  But  the  ownership  of  a  share  of  stock  does  not 
entitle  the  owner  to  participate  directly  in  the  current  man 


104  AMERICAN   JURISPRUDENCE.  §  97 

ageraent  of  the  corporate  business.  This  is  intrusted  to  the 
board  of  directors  or  other  officers,  in  whose  election  every 
stockholder  has  a  voice,  but  with  whom  after  their  appoint- 
ment no  stockholder  has  a  right  to  interfere  unless  they  act 
in  violation  of  the  charter  or  squander  the  assets  of  the  cor- 
poration, in  which  event  any  stockholder  may  invoke  the 
protection  of  a  court  of  equity,  if  the  corporation  as  a  whole 
refuses  to  act  in  his  defence,  (b)  For  the  corporation  is  a  trus- 
tee for  its  stockholders  and  owes  them  the  duty  not  only  of 
promoting  their  interests  by  the  wise  conduct  of  its  affairs, 
but  of  preserving  them  from  injury  and  loss  at  the  hands  of 
its  own  officers  and  agents;  and  its  persistent  refusal  to  dis- 
charge this  duty  may  result  in  the  transfer  of  its  management 
to  a  receiver  under  the  supervision  of  a  court  of  equity  and 
in  the  final  winding  up  of  the  corporate  enterprise,  (c) 

Read  («)  42  St.  17  ?  3  St.  586  (591,  592). 

(6)  46  D.  690;  76  D.  508,  note;  65  D.  557. 
(c)  53  D.  624,  note ;  66  D.  490. 


§  97.    Of  the  Liabilities  of  Stockholders. 

The  obligations  of  a  stockholder  to  the  corporation  and  in- 
directly to  its  creditors  are  measured  by  the  contract  into 
which  he  enters  by  his  subscription  for  his  shares  of  stock. 
As  between  himself  and  the  corporation  his  obligations  are 
fulfilled  if  he  pays  for  his  stock  in  the  property,  time,  manner, 
and  amount  which  his  agreement  with  the  corporation  or  its 
other  projectors  requires,  whether  the  payment  equals  the 
nominal  value  of  the  stock  or  not.  (a)  But  as  between  himself 
and  the  creditors  of  the  corporation  who  have  done  business 
with  it  in  good  faith  on  the  assumption  that  the  nominal  value 
of  the  stock  was  payable  in  full  as  the  progress  of  the  busi- 
ness might  demand,  —  an  assumption  that  any  creditor  has 
the  right  to  make  unless  he  has  some  notice  to  the  contrary, 
—  the  stockholder  may  be  compelled  to  pay  the  full  value  of 
his  shares  in  spite  of  any  promise  or  release  which  the  corpor- 
ation may  have  previously  given  him.  (b)  Whenever  neces- 
sary a  court  of  equity  will  force  the  corporation  to  collect  the 


§  98  PRIVATE   CORPORATIONS.  105 

unpaid  balance  for  its  shares  from  their  respective  holders, 
according  to  their  nominal  value,  and  use  the  proceeds  for  the 
payment  of  its  debts  (c)  ;  and  if  the  corporation  does,  not  or 
cannot  act,  a  receiver  may  be  appointed  with  similar  powers, 
or  the  creditors  collectively,  or  one  in  the  name  of  all,  may 
sue  the  delinquent  stockholders  for  the  amounts  still  remain- 
ing due.  (d)  But  when  the  stockholde r  has  once,  in  good  faith, 
paid  the  full  nominal  value  of  his  stock  in  money,  or,  if  the 
charter  allows  it,  in  property  available  for  the  use  of  the 
corporation,  his  obligations  are  fulfilled,  and,  in  the  absence 
of  a  statute  rendering  him  still  further  liable,  he  is  discharged 
from  all  responsibility  whether  to  the  corporation  or  its 
creditors,  (e) 

Read  (a)  119  U.  S.  343  ;  45  St.  133;  45  St.  700. 

(b)  144  U.  S.  104  (113,  114) ;  91  U.  S.  56 ;  105  U.  S.  143. 

(c)  139  U.   S.  118;    100  D.  546,  note;   52  D.  412;  150 

U.  S.  371;  51  R.  166;  57  St.  60,  note. 

(d)  101  U.  S.  205;    99  U.  S.  628;    26  St.  639;  139  U.  S. 

417;  137  U.  S.  366:  21  St.  798. 

(e)  101  U.  S.  216;  43  D.  685,  note;  49  D.  2S6,  note;  99 

D.  427,  note;  3  St.  797,  note. 


§  98.    Of  the  Ownership  and  Transfer  of  Stock. 

Any  person,  natural  or  artificial,  ma}-  be  the  owner  of 
shares  of  stock  in  a  stock  corporation,  (a)  The  corporation 
itself  may  hold  a  part  of  its  own  shares,  and  in  the  inception 
of  a  corporate  enterprise  this  often  happens,  where  not  all  the 
shares  are  taken  by  the  projectors  on  their  own  account,  but 
some  are  vested  in  the  corporate  body  for  future  disposition. (b) 
The  State  may  also  own  stock  in  private  corporations,  but 
when  it  does  so  it  is  as  a  corporate  body  not  as  sovereign,  (c) 
In  substituting  other  owners  for  himself  by  the  transfer  of  his 
stock,  a  stockholder  must  observe  the  rules  prescribed  by  the 
corporation,  and  the  purchaser  will  take  the  stock  subject  to 
such  rules  and  to  any  lien  for  unpaid  subscriptions,  and  to  any 
other  equitable  rights  which  the  corporation  may  possess 
against  the  formei  owner.  (</i     All  shares  of  stock  are  now  re- 


106  AMERICAN   JURISPRUDENCE.  §  99 

garded  as  personal  property,  although  the  property  of  the 
corporation  may  be  real,  and  a  transfer  on  the  books  of  the 
corporation  or  by  indorsing  the  certificate  of  stock,  without  a 
deed,  is  legally  sufficient,  (e) 

Read  (a)  13  St.  500  (603,  604) ;  36  St.  130,  note. 

(b)  33  St.  331,  note. 

(c)  9  Wheat.  904  (907,  908)  ;  11  Pet.  257  (323-327). 

(d)  11  D.  575,  note. 

(e)  19  I).  306;  57  St.  373,  note. 


§  99.  Of  the  Rights  and  Liabilities  of  Stockholders  in  Refer- 
ence  to  Outside  Parties. 
Although  the  stockholders  as  such  have  no  direct  partici- 
pation in  the  current  management  of  the  corporate  business, 
yet  they  are  not  without  power  to  protect  their  interests 
against  outside  parties  as  well  as  against  the  corporation 
itself,  (a)  In  extreme  cases,  where  the  corporation  will  not 
or  cannot  institute  proceedings  in  its  own  behalf,  the  stock- 
holders collectively,  or  one  in  the  name  of  himself  and  all  the 
rest,  may  bring  the  suit,  making  the  corporation  a  party  to 
the  action ;  and  in  this  manner  they  may  follow  perverted 
funds  wherever  they  can  reach  them,  or  assert  its  rights  to 
property  in  the  hands  of  adverse  claimants,  (b)  Stockholders, 
so  far  as  their  own  stock  is  concerned,  are  also  bound  by  all 
proceedings  against  the  corporation  on  the  part  of  others,  (e) 
The  holders  of  new  stock  issued  by  the  corporation  under 
legal  authority  during  the  progress  of  its  business  occupy  the 
same  position  in  all  these  respects  as  the  subscribing  owners 
and  transferees  of  the  original  shares. 

Read  (a)  90  D.  617;  22  D.  7S5 ;  84  D.  134. 

(b)  18  Wall.  626;  149  U.  S.  473. 

(c)  131  U.  S.  319. 


§§  100,  101       QUASI   PUBLIC   CORPORATIONS.  107 

SECTION   III. 

OF    QUASI    PUBLIC    CORPORATION'S. 

§  100.  Of  the  Peculiar  Franchises  of  Quasi  Public  Corporations. 
(Jurist  Public  Corporations  are  private  corporations,  and 
ordinarily  stock  corporations,  upon  which  in  view  of  their 
importance  to  the  public  certain  true  franchises  are  conferred 
in  addition  to  the  corporate  franchise,  (a)  These  franchises 
are  bestowed  upon  the  corporation,  not  as  a  reward  for  public 
service,  but  solely  as  a  means  by  which  it  may  be  enabled  to 
render  service  to  the  public,  and  the  language  in  which  they 
are  enumerated  in  the  charter  must  be  so  construed  as  to  re- 
strict their  application  to  the  public  needs,  (b)  These  fran- 
chises are  of  various  species,  but  the  principal  ones  are 
(1)  the  right  to  occupy  public  property;  (2)  the  right  of  emi- 
nent domain;  (3)  the  right  to  a  monopoly;  and  (4)  the  right 
to  take  tolls. 

Read  (a)  99  D.  300. 

(6)  10  Wall.  694. 

§  101.    Of  the  Right  to  Occupy  Public  Property. 

The  right  to  occupy  public  property  is  sometimes  vested  in 
a  private  corporation  in  order  that  the  property  may  be  better 
adapted  and  applied  to  public  use.  Thus,  for  example,  a 
public  river  may  be  placed  under  the  control  of  a  navigation- 
improvement  company,  who  expend  their  capital  and  energies 
in  removing  obstacles,  maintaining  wharves,  buoys,  lights, 
and  means  of  transportation,  and  receive  their  recompense 
through  the  exclusive  use  of  the  river  for  their  own  boats  or 
from  the  fees  paid  lor  their  passage  by  the  owners  of  other 
vessels,  (a)  The  appropriation  of  a  public  highway  to  a  turn- 
pike company,  or  to  corporations  owning  and  operating  street 
railways,  telegraphs  or  telephones,  gas  or  water  works,  or 
similar  enterprises,  are  other  instances  of  the  enjoyment  of 
this  valuable  franchise.  (/>) 

Read  (a)  25  D.  :J(3;  :5S  R.  222. 

(A)  91  1).  si  :  69  D.  651,  note. 


108  AMERICAN   JURISPRUDENCE.         §§  102,  103 

§  102.    Of  the  Right  of  Eminent  Domain. 

The  right  of  eminent  domain  is  the  right  to  take  private 
property  for  public  use.  Under  the  laws  of  this  country  this 
right  cannot  be  exercised  even  by  the  State  without  payment 
of  due  compensation  to  the  owner  of  the  property,  but  the 
right  is  none  the  less  a  true  franchise  since  no  private  person 
can  compel  others  to  part  with  their  property  against  their 
will,  whatever  compensation  he  may  be  prepared  to  make 
them.  Still,  without  this  right  many  corporate  enterprises 
would  be  impracticable,  and  where  the  public  welfare  requires 
the  facilities  which  such  enterprises  would  furnish  the  State 
can  confer  this  right  upon  any  private  corporation  by  whom 
the  enterprise  may  be  conducted.  The  right  given  to  rail- 
road corporations  to  take  any  land  required  for  their  road- 
bed or  buildings  upon  payment  of  its  value  to  the  owner  is 
the  most  familiar  form  of  this  franchise,  but  it  embraces  all 
other  such  appropriations,  whether  the  property  taken  be  lands 
or  goods  or  incorporeal  rights,  or  even  franchises  possessed 
by  other  corporations,  (a)  The  imposition  of  taxes  by  the 
State  upon  its  people  in  aid  of  quasi  public  corporations  has 
sometimes  been  held  justifiable  on  similar  grounds,  (b) 

Read  Cooley,  Const.  Lim.,  Ch.  xv;  Cooley,  C.  Law,  Ch.  xvi, 

pp.  363-377. 
(a)  22  D.  679,  note ;  40  D.  705 ;  55  D.  266,  note ;  69  D. 

389  (391,  392). 
(6)  16  Wall.  678;  56  D.  522,  note. 


§  103.    Of  the  Right  to  a  Monopoly. 

The  right  to  a  monopoly  is  the  right  to  exclude  all  other 
persons  from  participating  in  some  common  privilege  which 
the  monopolist  enjoys.  The  power  of  the  sovereign  to  exer- 
cise, or  to  grant  this  right  is  limited,  by  the  principles  of 
modern  law,  to  cases  in  which  the  public  will  derive  a  greater 
benefit  from  the  concentration  of  the  privilege  in  one  person 
than  from  its  diffusion  among  many.  This  right  is  a  true 
franchise  because  no  private  person  can  prevent  other  persons 
from  sharing  with  him  that  which  by  nature  or  by  the  ordi- 


§  104        QUASI  PUBLIC  COKPORATIONS.  109 

nary  rules  of  law  is  common  to  all,  while  the  State  for  its 
own  welfare  can  restrict  the  ownership  and  use  of  property  to 
any  extent  it  may  deem  necessary.  The  grant  of  a  monopoly 
is  never  presumed,  but  must  be  clearly  expressed  or  implied 
in  the  act  of  the  sovereign,  though  when  granted  it  will  be 
protected  and  enforced  by  law.  Monopolies  are  bestowed  on 
private  corporations  to  induce  them  to  embark  in  public 
enterprises  which  would  not  be  undertaken  were  the  business 
of  the  corporation  to  be  open  to  competition,  such  as  water 
or  lighting  companies,  street  or  steam  railways,  ferries  or 
bridges;  and  when  conferred  in  their  charter  are  a  part  of 
their  contract  with  the  State  which  cannot  be  impaired  by 
subsequent  legislation  unless  the  power  to  do  so  was  definitely 
reserved,  (a) 

Read  (a)  36  D.  202;  44  D.  S3;  65  D.  535;  42  D.  716. 


§  104.    Of  the  Right  to  Take  Tolls. 

The  right  to  take  tolls  is  the  right  to  exact  a  specific  fee 
or  reward  for  a  service  rendered,  irrespective  of  the  value  of 
the  service  or  of  any  contract  between  the  parties.  In  all 
ordinary  cases  of  service  the  price  to  be  paid  is  fixed  either 
by  the  agreement  of  the  parties  or  by  the  benefit  of  the  ser- 
vice to  one,  or  by  its  cost  in  time,  money,  or  energy  to  the 
other.  But  in  many  instances  of  service  rendered  to  the  gen- 
eral public  or  to  a  large  number  of  individuals  the  making 
of  such  agreements  or  the  estimate  of  benefit  and  cost  would 
be  impracticable,  and  here  the  State,  as  a  condition  of  the 
privilege  of  rendering  the  service  and  receiving  payment  for 
the  same,  arbitrarily,  though  with  due  regard  to  all  the  cir- 
cumstances, establishes  the  price  and  imposes  it  upon  every 
person  who  accepts  the  service.  This  arbitrary  price  is  called 
"a  toll,"  and  the  right  to  collect  it  is  usually  embraced  within 
the  franchises  conferred  on  railroad,  turnpike,  ferry,  and  canal 
companies,  and  other  corporations  occupying  a  similar  rela- 
tion to  the  public,  («) 

Read  (a)  39  D.  77S  ;  40  D.  .740  (741,  742,  717)  ;  18  R.  345. 


110  AMERICAN   JURISPRUDENCE.         §§  105,  106 

§  105.    Of  the  Control  of  the  State  over  Quasi  Public  Corpora- 
tions. 

A  quasi  public  corporation,  by  virtue  of  the  foregoing 
franchises,  is  brought  into  a  more  immediate  connection  with 
the  State  than  other  private  corporations,  and  is  subject  to 
more  frequent  legislative  interference.  Often  also  it  is  placed 
under  the  general  supervision  of  commissioners  appointed  by 
the  State  and  is  obliged  to  conduct  its  public  business  accord- 
ing to  their  directions,  (a)  But  neither  of  these  incidents 
changes  its  essential  character  as  a  private  corporation,  nor 
can  the  State,  either  through  its  commissioners  or  its  legis- 
lative body,  carry  its  interference  to  a  degree  which  thwarts 
the  purposes  for  which  the  corporation  was  created  or  im- 
pairs the  privileges  conferred  upon  it  by  its  charter,  (b) 

Read  (a)  15  St.  460,  note;  y4  U.  S.  155. 
(b)  62  St.  261,  note. 


SECTION    rv. 

OF    PUBLIC    CORPORATIONS. 

§  106.    Of  the  Nature  and  Powers  of  Public  Corporations. 

Public  corporations  or,  as  they  are  now  commonly  called, 
"municipal  corporations,"  are  not  mere  representatives  or 
agents  of  the  State,  but  are  integral  parts  of  its  governmental 
organization,  exercising  a  subordinate  and  delegated  sover-  \ 
eignty  over  a  limited  area  of  contiguous  territory  and  over 
the  persons  who  either  permanently  or  temporarily  are 
present  in  it.(r/)  The  principal  classes  of  these  corporations 
now  known  in  this  country  are  counties,  cities,  townships, 
and  boroughs.  They  are  created  by  the  State  at  its  discre- 
tion and  usually  by  a  legislative  act  conferring  on  the  terri- 
tory and  population  a  distinct  corporate  existence;  though 
where  communities  have  long  enjoyed  municipal  prerogatives 
without  a  formal  charter  the  grant  and  loss  of  such  a  charter 
may  be  judicially  presumed,  or  by  the  legislative  recognition 
of  the  community  as  a  true  public  corporation  it  may  be  as 


106         PUBLIC   OR   MUNICIPAL   CORPORATIONS.  Ill 


■<*»> 


effectually  established  as  if  it  had  originally  been  organized 
by  State  authority,  (b)  The  public  powers  attached  to  a  mu- 
nicipal corporation  are  also  determined  by  the  State.  They 
include  not  only  the  powers  expressly  enumerated  in  its 
charter,  but  whatever  incidental  powers  may  become  necessary 
in  order  to  carry  those  which  arc  expressed  into  complete  ef- 
fect, (c)  In  addition  to  these  public  powers  it  may  be  clothed 
with  rights  of  a  more  private  character,  enabling  it  to  deal 
with  its  own  people  or  with  outside  parties  like  any  other 
private  corporation,  (d)  The  express  public  powers  of  a  muni- 
cipal corporation  generally  embrace  the  control  oyer  streets. 
sewers,  health,  education,  police  and  fire  ^departments,  water 
and  light  supply,  markets,  paupers,  hospitals,  cemeteries,  and 
such  other  kindred  enterprises  as  the  legislature  may  commit 
to  its  direction.  Its  incidental  powers  comprise  the  power  to 
make  contracts,  the  power  to  acquire  and  hold  property,  the 
power  to  borrow  money  and  issue  bonds  or  other  acknowledg- 
ments, the  power  to  impose  and  collect  taxes,  and  the  power 
to  incur  debts.  Its  power  to  make  contracts  is  limited  by  its 
charter  and  the  nature  of  the  public  purposes  to  which  the 
contracts  are  related,  and  its  agreements  ultra  vires  cannot  be 
enforced,  (e)  The  property  which  it  acquires  for  public  pur- 
poses is  public  property,  is  held  by  it  in  trust  for  its  citizens, 
and  cannot  be  taken  in  execution  for  its  debts  nor  taxed  nor 
otherwise  interfered  with  except  by  the  State.  (/)  Its  power 
to  borrow  money  on  its  bonds  does  not  include  the  power  to 
issue  commercial  paper,  vesting  in  the  bona  fide  holder  a  right 
to  the  amount  of  its  apparent  value  free  from  all  equities  on 
behalf  of  the  municipality,  but  its  actual  emission  of  the 
bonds  together  with  their  lawfulness  every  purchaser  at  his 
own  risk  must  ascertain,  (y)  Its  taxing  power  extends  to  all 
private  property  within  its  territorial  boundaries,  and  may  be 
exerted  at  any  time  for  the  payment  of  its  obligations  either 
voluntarily  or  under  a  mandamus  from  the  courts  at  the  in- 
stance of  its  creditors,  (h)  Its  power  to  incur  debts  for  its 
lawful  purposes  is  without  limit  unless  it  is  restrained  by  the 
provisions  of  its  charter  or  the  general  law  (/).  but  where  its 
extravagance  is  manifest  and  taxpayers  have  no  other  redress, 


112  AMERICAN   JURISPRUDENCE.  §  107 

a  court  of  equity  may,  on  their  petition,  enjoin  the  officers  of 
the  corporation  from  a  further  waste  of  funds,  (j) 

Read  Cooley,  C.  Law,  Ch.  xvii,  pp.  378-380. 

(a)  69  D.  565  (577) ;  40  St.  109  (115,  116)  ;  36  R.  840. 

(b)  170  U.  S.  304 ;  69  D.  489 ;  133  U.  S.  198 ;  12  Wheat. 

64  (70-76). 

(c)  108  U.  S.  110  ;  30  St.  214,  note. 

(d)  35  St.  515,  note;  72  D.  730  (735,  736). 

(e)  36  St.  88;  2  Black,  722. 

(/)  99  U.  S.  149;  88  D.  248,  note;  40  St.  109;  17  Wall. 

322  ;  9  How.  172. 
(g)  30  D.  185,  note;   19  Wall.  468;  121  U.  S.  615;  145 

U.  S.  135. 
(h)  98  U.  S.  381 ;  66  D.  627 ;  102  U.  S.  472. 
(0  44  St.  222,  note;  45  St.  252,  note. 
(J)  2  St.  85,  note. 


§  107.    Of  the  Legislative  Powers  of  Public  Corporations. 

The  public  powers  of  a  municipal  corporation  are  either 
Legislative  or  Administrative.  In  the  exercise  of  its  legisla- 
tive powers  it  may  enact  by-laws  or  "  ordinances  "  which,  when 
valid,  are  of  the  same  force  as  the  statutes  of  the  State 
itself,  (a)  The  validity  of  such  ordinances  depends  upon  their 
conformity  to  the  general  law,  to  the  charter  of  the  corpor- 
ation, and  to  those  fundamental  principles  of  reason  and  jus- 
tice which  every  government  is  obliged  to  respect.  Thus 
ordinances  derogating  from  the  rules  already  adopted  by  the 
State,  as  where  they  change  the  legal  character  of  criminal 
acts  which  the  State  has  previously  defined  (b),  or  exempting 
individuals  from  liabilities  imposed  upon  them  by  the 
State  (c),  or  unnecessarily  restricting  personal  liberty  (d),  are 
void.  But  ordinances  are  not  invalid  simply  because  they  are 
burdensome  to  the  inhabitants,  nor  can  the  private  motives 
of  the  municipal  legislators  in  prescribing  them  be  made  the 
subject  of  investigation,  (e)  The  authority  of  valid  by-laws 
extends  to  strangers  passing  through  the  territory  of  the  cor- 
poration (/),  and  may  in  certain  cases  reach  beyond  its  limits 
where  their  enforcement  within  its  territory  cannot  otherwise 


§  108  PUBLIC   OR   MUNICIPAL   CORPORATIONS.  113 

be  effected,  (g)  The  legislative  power  of  a  municipal  corpo- 
ration inheres  not  in  itself  but  in  the  State  whose  delegate 
it  is,  and  though  the  ordinances  in  which  it  results  may  be 
declared  invalid  by  the  courts,  they  have  no  right  to  antici- 
pate that  it  will  make  invalid  laws  and  interfere  on  that  ac- 
count with  its  intended  exercise  of  legislative  power.  (Ji)  Nor 
can  one  legislative  act  of  the  municipality  forestall  its  future 
legislative  action  and  deprive  it  of  that  freedom  which  every 
legislative  body  necessarily  enjoys  to  disregard,  repeal,  or 
modify  its  own  enactments  at  its  pleasure,  (i) 

Read  Cooley,  Const.  Lira.,  Ch.  viii. 

(a)  19  St.  490;  34  D.  625,  note;  36  D.  441. 
(6)  68  D.  452. 

(c)  29  St.  750. 

(d)  6  St.  310 ;  16  St.  573. 

(e)  113  U.  S.  27;  113  U.  S.  703 ;  92  D.  73,  note. 
(/)17D.351. 

(g)  16  D.  189,  note. 

(h)  36  St.  438 ;  41  St.  248. 

(t)  47  St.  258. 

§  108.  Of  the  Administrative  Powers  of  Public  Corporations. 
The  administrative  powers  of  a  public  corporation  are 
either  Judicial  or  Ministerial.  Its  judicial  powers  are  exer- 
cised in  determining~suc1r  matters  as  by  the  general  law,  the 
express  or  implied  powers  of  its  charter,  or  the  essential  nature 
of  things,  are  left  to  its  discretion.  Its  ministerial  powers 
are  exercised  in  carrying  into  practical  effect  the  decisions  at 
which  it  judicially  arrives,  or  in  performing  duties  directly 
imposed  upon  it  by  the  State.  The  line  between  these  is  not 
always  easy  to  draw,  since  every  ministerial  act  in  which  the 
reason  and  will  of  the  actor  are  employed  demands  to  some 
extent  the  exercise  of  judgment;  but  the  distinction  is  well 
recognized  in  law,  and  in  most  instances  presents  no  insuper- 
able difficulty.  The  judicial  powers  of  a  municipal  corpo- 
ration are  applied  chiefly  in  deciding  whether  or  not  an  act 
which  is  within  its  discretion  shall  be  performed,  and  if  so, 
in  what  mode,  if  several  lawful  modes  there  be.     But  having 

8 


114  AMERICAN    JURISPRUDENCE.  §  109 

once  decided  that  the  act  shall  be  performed,  and  selected  the 
lawful  mode  in  which  it  shall  be  done,  the  performance  of 
the  act  according  to  that  mode  involves  only  its  ministerial 
powers,  which  are  controlled,  as  to  the  method  of  their  exer- 
cise, not  by  municipal  discretion,  but  by  the  ordinary  legal 
requirement  of  proper  care  and  skill.  The  principal  cases  in 
which  this  distinction  becomes  important  are  those  arising 
out  of  injuries  to  third  parties  as  a  consequence  of  municipal 
action,  and  as  to  these  the  same  rules  are  observed  as  in 
reference  to  other  public  official  acts.  For  injuries  resulting 
from  the  exercise  of  its  judicial  powers  the  corporation  is  not 
liable  (a);  for  those  which  it  occasions  by  its  ministerial 
action  it  is  responsible  like  any  private  individual,  (b) 

Read  (a)  55  D.  347,  note ;  22  R.  507  ;  47  St.  596,  note. 

(6)  89  D.  450;  94  D.  461 ;  6  St.  256  ;  10  St.  35;  36  St. 
438,  note ;  27  D.  95  ;  9  How.  248  ;  15  St.  840,  note; 
32  D.  730. 


§  109.  Of  the  Liability  of  Public  Corporations  in  Reference  to 
Streets,  Sewers,  Bridges,  etc. 
Instances  of  the  application  of  these  rules  to  municipal  cor- 
porations by  the  courts  have  related  chiefly  to  injuries  occa- 
sioned by  the  construction  or  condition  of  streets,  sewers,  or 
bridges,  the  maintenance  and  operation  of  police  and  fire 
departments,  and  the  exercise  of  its  police  powers  for  the 
protection  of  the  public  health  and  safety.  "Whether  or  not 
a  new  street  shall  be  opened  or  an  existing  street  be  widened 
or  graded  are  questions  of  discretion  only,  and  no  liability 
attaches  to  the  municipality  for  any  consequences  which  may 
follow  from  the  opening  of  the  street  in  that  locality,  or  from 
the  extension  of  its  width,  or  the  raising  or  lowering  of  its 
grade,  (a)  But  if  in  opening  the  new  street,  or  broadening  or 
changing  the  elevation  of  an  old  one,  the  work  is  so  improp- 
erly  performed  according  to  the  ordinary  standards  of  care 
and  skill,  or  if  the  street  itself,  after  it  is  completed,  is 
suffered  to  become  and  remain  out  of  repair,  and  damage 
is  thereby  occasioned  to  third   parties,  the   municipality   is 


§  110  PUBLIC   OR   MUNICIPAL   CORPORATIONS.  115 

liable,  (b)  Whether  any  and  what  portions  of  the  territory  of 
the  corporation  shall  be  sewered  and  upon  what  general  plan 
the  sewers  shall  be  erected  (c),  whether  and  how  public  bridges 
shall  be  built  (d),  whether  police  or  fire>  departments  shall  be 
maintained,  and,  if  so,  upon  what  scale  of  equipment  and 
official  numbers  (e),  what  measures  shall  be  taken  to  prevent 
the  spread  of  disease  or  to  remove  public  nuisances  (/),  are 
likewise  matters  of  discretion  upon  which  the  municipality  is 
free  to  act  without  responsibility  to  those  who  may  be  preju- 
diced by  its  decision;  but  in  carrying  its  decisions  into  effect 
it  becomes  accountable  for  any  failure  on  its  part  to  exercise 
that  measure  of  capability  and  caution  which  the  law  requires 
of  other  individuals. 

Read  Cooley,  Const.  Litn.,  Ch.  xvi. 

(a)  43  1).  719;  49  1).  412;  30  St.  832,  note ;  20  How.  635. 

(b)  29  St.  758,  note;  31  St.  839,  note;  63  D.  345,  note  ; 

83  D.  557,  note  ;  17  St.  732,  note ;  45  St.  853,  note ; 
2  Black,  418. 

(c)  78  1).  342;  53  D.  316,  note;  55  D.  347;  24  R.  552, 

note ;  29  St.  730,  note. 
(tl)  99  U.  S.  635. 
(e)   2  R.  368. 
(/)  92  1).  73,  note;  115  U.  S.  650;  152  U.  S.  133;  171 

U.  S.  1  ;   17  St.  696  (69S)  ;  35  St.  152  (155-157); 

47  St.  525,  note. 


§  110.  Of  the  Liability  of  Public  Corporations  for  the  Con- 
duct of  their  Officers  and  Agents. 
Municipal  corporations,  like  other  bodies  corporate,  can  act 
only  by  majority  vote  or  through  their  lawfully  appointed  or 
adopted  officers  and  agents.  The  official  personages  connected 
with  municipal  corporations  are  divisible  into  three  classes: 
(1)  Agents  of  the  corporation  in  its  private  capacity;  (2) 
Agents  of  the  corporation  in  its  public  capacity;  (3)  Public 
officers.  The  first  class  are  appointed  by  the  corporation  to 
transact  its  business  as  a  private  corporation,  when  such  a 
corporate  character  has  been  impressed  upon  it  by  its  charter. 
For  their  acts  and  defaults  the  municipality  is  responsible  in 


116  AMERICAN   JURISPRUDENCE.  §  111 

the  same  degree  as  if  it  possessed  no  public  character  or  prop- 
erty or  powers,  (a)  The  second  class  are  employed  by  the  cor- 
poration to  act  on  its  behalf  as  a  public  corporation,  and  their 
acts  bind  it  so  far  as  they  do  not  exceed  its  charter  powers  or 
the  scope  of  the  specific  agency  to  which  they  have  been 
appointed,  (b)  The  third  class,  though  sometimes  designated 
and  paid  by  the  municipality  and  performing  their  official 
duties  within  its  territory  and  in  relation  to  its  people,  are 
not  its  agents,  but  officers  of  the  State,  and  by  their  acts  and 
omissions,  of  whatever  character,  the  corporation  incurs  no 
liability.  To  this  class  belong  policemen,  firemen,  health- 
officers,  and  all  other  functionaries  who,  though  connected 
with  the  corporation  and  using  the  instrumentalities  which  it 
supplies,  are  really  exercising  the  sovereign  powers  of  the 
State  itself  for  the  protection  of  the  persons  and  property  of 
its  citizens,  (c)  Their  acts  are  acts  of  the  State,  not  of  the 
corporation,  and  being  public  acts  of  public  officers  an  injury 
resulting  from  them  is  not  a  legal  injury,  nor  entitled  to  re- 
dress, unless  the  acts  have  been  corruptly  or  maliciously 
performed,  (d) 

Read  (a)  38  D.  669,  note;  45  St.  114. 

(b)  34  St.  17,  note. 

(c)  30  St.  373,  note;  46  St.  760;  79  D.  721;  33  R.  154; 

6  R.  196;  9  R.  382;  48  R.  762. 

(d)  82  D.  556. 

§  111.    Of  the  Control  of  the  State  over  its  Public  Corporations. 

The  authority  of  the  State  over  its  public  corporations  is 
unlimited,  except  by  its  own  Constitution  and  the  funda- 
mental principles  of  law.  Their  charters  are  amendable  and 
repealable  at  its  pleasure.  It  may  combine  or  divide  them 
as  it  deems  expedient,  and  correspondingly  distribute  or  con- 
solidate their  rights  and  liabilities,  (a)  It  may  ratify  their 
unauthorized  actions  and  so  make  them  valid.  It  may  recog- 
nize a  de  facto  corporation  as  duly  clothed  with  charter  powers 
and  thereby  make  it  thenceforth  a  corporation  de  jure,  (b) 
No  acceptance  of  its  original  charter  or  of  any  subsequent 
amendments  to  it  by  the  corporation  is  necessary  to  render  them 


§  112         PUBLIC    OR    MUNICIPAL    CORPORATIONS.  117 

effectual,  nor  have  its  members  any  legal  right  to  complain 
of  any  change  which  the  State  may  make  in  their  corporate 
character  or  powers.  But  while  the  State  can  thus  create  and 
fashion  and  extinguish  the  corporate  personality,  it  cannot 
force  it  to  perform  acts  prejudicial  to  its  members  or  sub- 
versive of  the  vested  rights  of  others.  It  cannot  compel  it  to 
plunge  into  debt  for  public  improvements,  or  to  pay  salaries 
which  exhaust  its  resources,  or  to  impose  excessive  and 
destructive  taxes,  or  to  violate  its  obligations  toward  its 
creditors,  (c) 

Read  (a)  67  D.  748  ;  24  R.  661 ;  100  U.  S.  514 ;  35  St.  515,  note. 
(Jb)  7  Wall.  1. 
(c)  116  U.  S.  289. 


§  112.    Of  the  State  as  a  Corporation. 

The  State  has  many  of  the  attributes  of  personality,  and, 
not  being  in  any  sense  a  natural  person,  is  often  called  a  cor- 
poration, though  not,  of  course,  created  directly  by  the  law. 
Its  powers  are  inherent  not  conferred,  and  are,  like  those 
of  public  corporations,  either  public  or  private.  Its  public 
powers  are  not  franchises  but  elements  of  its  sovereign  pre- 
rogative, (ft)  Its  private  powers  are  co-extensive  with  the 
requirements  of  its  condition,  and  in  their  exercise  it  assumes 
the  character  of  a  private  person,  and  is  bound  by  its  own  laws 
like  any  individual  citizen.  (I>)  In  this  capacity  it  may  make 
contracts,  acquire,  hold,  and  convey  property,  employ  agents, 
and  sue  at  law  or  in  equity  for  the  violation  of  its  rights,  (c) 
It  cannot,  however,  be  sued  in  its  own  courts  without  its 
special  consent,  (d)  These  rules  apply  equally  to  the  several 
States  of  tlic  American  Union  and  to  the  United  States. 

Read  Holland,  Cli.  xvi.  pp  310-342. 
(a)  78  1).  -"'71  :  8  St.  744. 
(6)  94  1>.  635  :  7  Wall.  866. 
(c)   11  How.  229. 
(</)   12   D.  516,  note:   18  D.  194,  note  ;  41   D.  549  (552, 

553);  63  D.  130;  10  St.  712;  22  St.  624,  note; 

106  U.  S.  196. 


118  AMERICAN   JURISPRUDENCE.         §§  113,  114 


CHAPTER  IV. 

OF  THINGS. 

§  113.    Of  the  Nature  of  Things. 

A  thing  is  a  being  devoid  of  personality.  Every  object  of 
which  the  law  can  take  cognizance,  and  which  is  not  a 
natural  or  artificial  person,  is  embraced  within  this  definition 
and  is  known  as  a  thing.  Persons  also,  wheu  deprived  tem- 
porarily or  permanently  of  the  essential  elements  of  person- 
ality, fall  within  the  same  class  of  beings  and  become  mere 
things.  Thus  a  human  being  after  life  is  extinct,  or  while 
consciousness,  reason,  and  will  are  suspended,  or  when  under 
the  control  of  irresistible  external  force,  ceases  to  be  capable 
of  self-determination,  and  is  reduced  from  the  state  of  a  person 
to  that  of  a  thing.  A  similar  chauge  of  state  may  be  effected 
by  the  law,  as  in  the  case  of  a  slave  who,  though  naturally  a 
person,  is  in  many  respects  legally  only  a  thing. 

Read  Holland,  Ch.  viii,  pp.  86-92  ;  Markby,  §  125;  Amos,  Ch. 
vi,  pp.  85-88;  Austin,  Lect.  xiii,  pp.  358-360,  Lect. 
xlvi,  pp.  773-783. 


§  114.    Of  Things  Corporeal  and  Incorporeal. 

Things  are  divisible  according  to  their  nature  into  two 
classes:  Corporeal  and  Incorporeal.  The  distinction  between 
these  classes  is  not  the  same  as  between  things  material  and 
immaterial,  or  between  things  physical  and  spiritual,  but 
rather  that  between  things  tangible  and  things  intangible. 
Things  corporeal  are  those  which  can  be  handled,  and  either 
occupied  by  man  or  delivered  by  one  person  to  another.  Such 
are  lands  and  houses  into  which  a  man  can  enter,  or  animals, 
furniture,   and   vessels   which  he  can   manually  transfer  to 


§  115  THINGS.  119 

another.  Things  incorporeal  are  those  which  cannot  be 
handled  or  occupied  or  delivered.  They  may  be  material 
or  immaterial,  physical  or  spiritual.  They  may  or  may  not 
be  perceptible  to  the  senses  of  sight,  smell,  taste,  and  hear- 
ing, but  they  do  not  come  under  the  manual  control  of  per- 
sons, and  cannot  be  transferred  by  one  person  to  another 
except  by  words,  written  or  spoken,  or  by  some  act  which 
signifies  that  the  dominion  of  the  former  owner  over  them  has 
ceased  and  that  of  a  new  owner  has  begun.  Examples  of 
incorporeal  things  are  the  unchained  forces  of  nature,  the 
powers  of  the  mind,  the  franchises  of  corporations,  and  the 
privileges  which  one  person  may  possess  in  reference  to 
the  persons  and  property  of  others.  Whether  some  things 
are  corporeal  or  incorporeal  depends  on  their  condition  rather 
than  their  nature.  The  vapors  of  the  atmosphere,  for-  in- 
stance, while  unconfined,  are  incorporeal;  enclosed  in  a  recep- 
tacle or  condensed  into  water  or  frozen  into  ice,  they  become 
corporeal.  Other  things,  like  buildings,  money,  furniture,  are 
corporeal  as  long  as  they  preserve  their  identity.  Others, 
such  as  the  mental  faculties,  franchises,  and  similar  privi- 
leges, are  always  incorporeal. , 

Read  2  Bl.  Com.,  p.  17;  Markby,  §§  120-128;    Austin,  Lect. 
xiii,  pp.  361,  362. 


§  115.  Of  Incorporeal  Things  which  Exist  only  in  Contempla- 
tion of  Law. 
Things  incorporeal  may  either  have  an  actual  existence,  or 
they  may  exist  only  in  contemplation  of  law.  The  forces  of 
nature,  mental  conceptions,  and  the  like,  are  essential  reali- 
ties, not  depending  on  human  society  or  political  institutions 
for  their  bein,ur.  But  franchises,  privileges  in  the  property 
of  others,  contract  rights,  rights  of  action,  and  many  oth<  c 
incorporeal  objects,  cannot  exist  except  in  society,  and  only 
exist  there  by  virtue  of  the  creative  act  of  the  law.  In  the  eye 
of  the  law  these  are,  however,  as  real  as  any  other  objects,  and 
are  as  fully  subject  to  its  protection  and  control.  The  num- 
ber of  these  objects  rapidly  increases  with  the  development 


120  AMERICAN   JURISPRUDENCE.  §  116 

of  social  life,  and  they  often  rival,  if  not  perhaps  surpass,  in 
value  those  whose  existence  is  independent  of  the  law. 

Read  2  BI.  Com.,  p.  20  ;  Holland,  Ch.  xi,  pp.  183-186;  Amos, 
Ch.  viii,  pp.  167-170. 


§  116.    Of  Things  Movable  and  Immovable. 

Things  are  divided  according  to  their  relations  to  other 
things  into  Movable  and  Immovable.  Things  corporeal  are 
movable  when  they  can  be  transported  from  one  place  to 
another  without  losing  their  identity.  Things  corporeal  are 
immovable  when  they  are  permanently  attached  to  one  locality 
or  can  be  removed  only  by  disintegration  and  destruction. 
This  distinction,  simple  enough  as  thus  stated,  is  more  or  less 
complicated  by  certain  rules  of  law  which  declare  that  corpo- 
real objects  movable  in  themselves  are  in  some  cases  legally 
immovable,  —  meaning  thereby  that  the  owner  of  the  movable 
object  has  no  legal  right  to  remove  it  from  the  place  where 
at  the  time  it  happens  to  be.  Thus  a  tree  planted  in  the  soil 
is  actually  movable  without  loss  of  its  identity,  and  if  the 
owner  of  the  soil  and  the  owner  of  the  tree  are  the  same  per- 
son, he  ordinarily  has  also  the  legal  right  to  remove  it;  but 
under  certain  circumstances,  as,  for  instance,  if  he  has  mort- 
gaged or  contracted  to  sell  the  land  with  the  tree  growing  in 
it,  the  tree  will  become  immovable  in  law,  though  in  fact  as 
easily  movable  as  ever.  Apart  from  these  legal  rules,  which 
apply  only  to  cases  where  two  or  more  parties  have  conflicting 
interests  in  the  same  object,  —  one  to  remove,  the  other  to 
retain  it  in  its  present  place,  and  the  law  decides  in  favor  of 
the  latter,  —  corporeal  things  are  movable  or  immovable 
according  to  their  actual  mobility.  Things  movable  are  said 
to  follow  the  person  of  the  owner  wherever  he  goes.  This 
does  not,  however,  imply  that  they  move  as  he  moves,  but 
that  wherever  they  may  be  they  are  always  in  his  legal  posses- 
sion, and  are  governed  by  the  system  of  laws  prevailing  in  the 
place  in  which  he  legally  resides.  Things  immovable,  on  the 
other  hand,  remain  always,  both  in  law  and  in  fact,  in  the 
same  locality,  and  are  controlled  by  the  laws  of  the  place 


§  117  THINGS.  121 

where  they  are  situated.  To  things  incorporeal  the  physical 
attributes  of  mobility  and  immobility,  of  course,  do  not  apply. 
But  as  immovable  things  are  generally  permanent,  and  mov- 
able things  are  often  transitory,  the  law  ascribes  the  attribute 
of  immobility  to  certain  incorporeal  things  whose  duration 
is  interminable  or  indefinitely  protracted,  or  whose  relation 
to  immovable  corporeal  property  is  such  that  both  must  be 
governed  by  the  same  system  of  laws,  while  other  incorpo- 
real things  are  classed  as  movable. 
Read  2  Bl.  Com.,  pp.  384-388. 


§  117.    Of  Things  Real  and  Personal. 

Things  are  also  divided  into  Real  and  Personal.  This  clas- 
sification originally  rested  upon  the  legal  status  of  objects  as 
chiefly  manifested  by  the  remedy  which  the  law  afforded  to 
their  rightful  possessor  when  he  had  been  unlawfully  deprived 
of  their  possession.  In  former  times  such  rightful  possessor, 
if  the  objects  of  which  he  had  been  deprived  were  of  a  certain 
character,  could  recover  by  an  action  at  law  the  possession 
of  those  very  objects,  and  hence  those  actions  were  called 
"real  actions,"  and  the  objects  recoverable  by  them  were 
known  as  "things  real."  On  the  other  hand,  if  the  objects 
were  of  a  different  character  he  could  not  recover  by  his  action 
at  law  the  real  objects  themselves,  but  only  damages  for  their 
privation,  to  be  collected  from  the  wrong-doer,  if  necessary, 
by  the  imprisonment  of  his  person,  and  hence  such  actions 
were  called  "personal  actions,"  and  the  objects  for  whose 
dispossession  they  were  brought  were  known  as  "things 
personal."  This  line  of  distinction  was  not  an  exact  one,  for 
in  certain  cases  the  actual  possession  of  things  personal  could 
also  be  recovered,  but  it  was  of  sufficiently  general  applica- 
tion to  warrant  this  classification  of  objects  by  the  law.  Xow, 
as  it  happened,  the  things  which  could  thus  be  legally  recov- 
ered in  specie  were,  for  the  most  part,  immovable  or  perma- 
nent, while  the  things  for  which  damages  alone  could  be 
obtained  were  movable;  and  for  this  reason  the  name  "real" 
became  gradually  applied  to  immovable  objects,  and  the  name 


122  AMERICAN    JURISPRUDENCE.  §  118 

"  personal  "  to  those  which  are  transitory  or  movable,  until 
by  many  modern  jurists  these  classifications  have  been  treated 
as  identical.  But,  strictly  speaking,  they  are  not  so.  Under 
our  modern  law  things  movable  can  in  many  cases  be  recov- 
ered in  specie,  and  such  things  are,  therefore,  as  real,  in  the 
ancient  sense,  as  things  immovable,  and  thus  not  only  has 
the  old  ground  of  distinction  between  things  real  and  personal 
nearly  disappeared,  but  the  correspondence  between  personal 
and  movable  on  one  side,  and  immovable  and  real  upon  the 
other,  has  also  vanished.  During  the  period  when  this  dis- 
tinction and  correspondence  did  exist,  however,  there  grew 
up  two  bodies  of  law,  respectively  known  as  the  Law  of  Real 
Property  and  the  Law  of  Personal  Property,  which  were 
separated  from  one  another  by  certain  fundamental  differences 
relating  mainly  to  the  acquisition  and  transfer  of  the  two 
species  of  property.  Objects  governed  by  the  law  of  Real 
Property,  whether  as  formerly  they  are  immovable  or  as  in 
]ater  times  they  are  frequently  movable,  are  appropriately 
called  "real,"  while  objects  regulated  by  the  law  of  Personal 
Property  may  be  truly  known  as  "personal."  The  distinc- 
tion, therefore,  now  rests  as  it  did  anciently  upon  the  legal 
status  of  the  objects  rather  than  their  mobility  or  immo- 
bility, not  indeed  their  legal  status  as  to  the  law  of  remedies 
alone,  but  as  to  the  two  great  bodies  of  law,  — the  law  of  Real 
Property  on  one  hand  and  the  law  of  Personal  Property  upon 
the  other.  Everything  governed  by  the  law  of  Personal 
Property  is  personal;  everything  governed  by  the  law  of  Real 
Property  is  real.  As  to  what  objects  shall  be  subjected  to 
each  of  these  systems  of  law,  the  law  itself  decides,  and 
may  at  any  time  remove  an  object  from  the  control  of  one 
system  to  that  of  the  other. 

Read  2  Bl.  Com.,  p.  16;  Markby,  §§  129,  130;  Williams,  R.  P. 
pp.  1-10. 


§  118.    Of  the  Authority  of  the  State  over  Things. 

All  things,  like  all  persons,  are  subject  to  the  law.     Not 
that  the  practical  sovereignty  of  the  State  now  extends  to  and 


§  118  THINGS.  123 

controls  all  objects  corporeal  or  incorporeal,  for  it  is  actually 
confined  to  those  which  come  in  some  way  into  relations  with 
the  human  race,  but  that  as  man  advances  and  widens  his 
horizon  and  acquires  new  possessions  and  establishes  new 
relations  all  these,  to  the  utmost  possibility  of  human  devel- 
opment, must  fall  one  after  the  other  under  the  practical 
sovereignty  of  the  State  and  become  subject  to  the  operation 
of  its  laws.  Already  the  law  of  things,  or  the  law  which 
governs  the  rights  of  persons  in  things,  far  outstrips  in  vol- 
ume and  detail  the  law  of  persons,  and  constantly  presents 
new  questions  of  the  most  difficult  character  and  of  the  most 
serious  import  to  mankind. 


124  AMERICAN   JURISPRUDENCE.  §  119 


CHAPTER   V. 

OF  RIGHTS,  DUTIES,    WRONGS,  AND  REMEDIES. 


SECTION    I. 


OF    RIGHTS. 


§  119.    Of  the  Purpose  of  Law. 

The  purpose  of  law  is  the  definition  and  assertion  of 
rights.  If  all  the  rights  of  States  and  individuals  were  spon- 
taneously understood  and  respected  there  would  be  no  occa- 
sion for  the  enactment  by  political  society  of  any  rules  of 
conduct.  But  because  these  rights  are  not  always  compre- 
hended, or  when  comprehended  are  not  always  respected, 
society  is  obliged  for  its  own  preservation  and  the  protection 
of  its  members  to  make  laws  and  to  compel  their  observance. 
Thus,  in  communities  composed  of  intelligent  and  upright 
persons,  who  instinctively  and  almost  unconsciously  perform 
the  acts  which  the  law  would  otherwise  command,  rights  re- 
quire little  specific  definition  or  protection  and  the  laws  are 
consequently  either  few  in  number  or  rarely  appear  as  impor- 
tant elements  in  social  life.  On  the  contrary,  in  ignorant  or 
turbulent  communities  the  machinery  of  the  law  is  in  vigor- 
ous and  constant  operation,  the  several  functions  of  the  State 
being  incessantly  exercised  in  the  assertion  and  defence  of 
individual  and  public  rights.  Hence  it  is  that,  to  a  great 
extent,  rights  become  consciously  known  and  understood  only 
through  their  legal  definition,  and  this  relation  between  law 
and  right  has  led  some  writers  to  maintain  that  rights  have 
their  origin  in  law,  and  that  in  the  absence  of  political  society, 


§  120  RIGHTS.  125 

manifesting  its  authority  by  the  definition  and  assertion  of 
rights,  individuals  would  have  no  rights  which  other  indi- 
viduals would  be  under  any  obligation  to  respect.  Were  this 
proposition  true,  not  only  would  there  be  in  individuals  no 
right  to  form  a  .State  and  no  obligation  to  unite  with  and  obey 
it,  but  the  State,  when  formed,  or  the  ruling  majority  in  it, 
would  possess  absolute  dominion  over  the  persons  and  prop- 
erty of  its  citizens,  and,  however  unreasonable  and  unjust  its 
acts  might  be,  they  could  work  no  wrong  to  any  one,  since 
wrong  consists  in  the  violation  of  rights,  and  there  could  be 
no  rights  except  such  as  the  State,  or  the  majority  in  it, 
might  see  fit  to  concede. 

Read  Holland,  Ch.  vi,  pp.  68-70,  Ch.  xiii,  p.  284. 


§  120.    Of  the  Origin  of  Rights. 

Rights  have  their  origin  in  the  nature  of  persons,  and  con- 
sequently exist  by  virtue  of  the  eternal  law.  A  right  is  the 
authority,  inherent  in  a  person,  to  freely  exercise  in  accord- 
ance with  reason  and  justice  his  natural  and  acquired  capabil- 
ities. The  natural  capabilities  of  a  person  reside  in  him  in 
obedience  to  the  natural  law.  His  acquired  capabilities  result 
from  the  development  of  his  natural  capabilities  by  forces 
which  owe  their  existence  and  their  influence  upon  him  to  the 
same  natural  law.  And  as  all  the  operations  and  effects  of 
the  natural  law  proceed  from  the  intelligence  and  purpose  of 
the  Supreme  First  Cause,  so  do  all  the  capabilities  of  a  per- 
son, whether  natural  or  acquired,  subsist  in  him  in  pursu- 
ance of  the  same  supreme  intelligence  and  purpose,  and  in 
order  that  they  may  be  exercised  by  him  in  the  attainment  of 
those  ends  for  which  by  the  same  intelligence  and  purpose  he 
has  been  designed.  The  possession  of  a  power  to  act  thus 
carries  with  it  a  right  to  act, — the  right  and  the  power 
equally  relating  back  to  the  ultimate  intellect  and  will  out 
<>i'  which  all  created  nature  springs.  Now  were  there  but  one 
person    in  the  universe,  and  he  endowed  with  but  a  single 


126  AMERICAN    JURISPRUDENCE.  §  120 

capability,  his  right  to  exercise  that  capability  to  its  fullest 
possible  extent  would  follow  necessarily  from  its  possession. 
But  where,  as  in  mankind,  many  capabilities  reside  in  the  same 
person,  each  must  be  exercised  with  due  regard  to  the  benefi- 
cial exercise  of  the  others,  such  harmony  and  subordination 
being  maintained  between  them  as  will  insure  to  their  pos- 
sessor, from  their  collective  exercise,  the  most  advantageous 
result.  The  power  to  eat,  for  example,  must  be  exerted  with 
reference  to  the  power  to  digest  ;  the  physical  and  mental 
capabilities  must  be  maintained  in  proper  subordination  to 
each  other,  neither  the  body  exhausted  by  mental  effort  nor 
the  mind  clouded  by  sensual  indulgence,  but  every  faculty 
restricted  in  its  operation  to  occasions,  methods,  and  degrees 
which  allow  every  other  faculty  its  adequate  influence  upon 
the  individual  character  and  life.  Hence  in  a  composite  per- 
son like  man,  although  the  right  exists  because  the  power 
exists,  yet  the  right  is  not  commensurate  with  the  power,  but 
is  necessarily  limited  by  the  co-existence  and  contemporaneous 
exercise  of  other  equally  essential  powers.  It  is  the  prin- 
cipal office  of  the  human  reason  to  act  as  mistress  and  arbiter 
over  these  various  capabilities  and  to  duly  order  and  propor- 
tion the  exercise  of  each  one  to  the  others.  An  exercise  of 
powers  is  reasonable  and  right  when  this  order  and  proportion 
are  preserved;  unreasonable  and  wrong,  whenever  they  are 
violated;  and  thus  a  right  consists,  so  far  as  its  individual 
possessor  is  alone  concerned,  in  the  authority  to  use  his  col- 
lective capabilities  according  to  the  dictates  of  reason.  More- 
over, man  is  not  the  only  person  in  the  universe.  He  is 
surrounded  by  an  innumerable  multitude  of  persons,  all 
endowed  with  powers  and  clothed  with  rights  under  the 
natural  law,  and  related  to  himself  in  such  a  manner  that 
more  or  less  of  them  are  constantly  affected  by  his  conduct, 
and  he  in  turn  by  theirs.  As  the  rights  of  these  other  per- 
sons rest  on  the  same  basis  as  his  own,  they  are  of  equal 
validity  and  authority  with  his,  and  thus  the  law  of  nature 
imposes  upon  him  the  obligation  to  recognize  their  rights  and 
so  adjust  the  exertion  of  his  capabilities  to  theirs  that  every 
one  may  freely  exercise  his  powers  to  the  utmost  extent  com- 


§  121  RIGHTS.  127 

patible  with  their  equally  free  exercise  by  every  other.  This 
adjustment  is  again  the  office  of  the  reason,  and  its  measure 
and  result  are  fixed  by  justice,  which  compels  every  person 
to  render  to  every  other  person  that  which  is  his  due.  Thus 
a  further  differentiation  arises  between  the  scope  of  rights  and 
that  of  powers,  the  right  to  exercise  the  power  existing  only 
when  its  exercise  is  reasonable  and  just. 
Read  Lorimer,  Book  i,  Ch.  vii. 


§  121.  Of  the  Legal  Definition  and  Assertion  of  Essential  Rights. 
If  all  men  were  intuitively  governed  by  right  reason  and 
strict  justice,  every  man  would  be  a  sufficient  law  unto  him- 
self, and  every  right  would  be  spontaneously  recognized  and 
respected.  But  since  in  man,  as  he  really  exists,  the  light 
of  reason  is  generally  deficient  or  the  sense  of  justice  weak, 
it  is  necessary  that  some  authority  external  to  himself  should 
point  out  to  him  the  true  limitations  which  reason  and  justice 
establish  to  the  exercise  of  his  various  powers,  —  in  other 
words,  that  it  should  define  his  rights  and  prescribe  rules  of 
conduct  by  which  they  may  be  preserved.  One  of  the  chief 
of  these  authorities,  though  not  by  any  means  the  only  one, 
is  the  State,  which,  with  a  view  primarily  to  the  welfare  of 
the  social  body  as  a  whole,  undertakes  to  define  and  protect 
by  its  laws  such  of  these  rights  as  cannot  be  invaded  without 
detriment  to  society  itself,  either  through  the  loss  entailed 
upon  the  individual  or  through  the  disturbance  of  the  public 
peace  and  order.  Rights  thus  defined  become  known  as 
"legal  rights,"  not  because  they  are  created  by  legislative  ac- 
tion, nor  because,  having  been  originally  natural  rights,  they 
have  lost  their  intrinsic  validity  and  obligation,  but  because, 
having  received  the  sanction  and  protection  of  the  laws,  they 
now  possess  a  new  vitality  and  energy  through  their  adoption 
and  assertion  by  the  State  Outside  of  these  still  lies  the 
vast  field  of  purely  natural  rights,  of  which  as  yet  the  State 
takes  no  cognizance,  either  because  the  common  sense   and 


128  AMERICAN   JURISPRUDENCE.  §  122 

natural  instincts  of  its  members  sufficiently  secures  their  due 
observance,  or  because  their  recognition  is  not  necessary  to 
the  accomplishment  of  the  purposes  for  which  political  soci- 
ety exists,  (a) 

Read  1  Bl.  Com.,  pp.  53-55;   Markby,  §§  147-153,  159-162; 
Holland,  Ch.  vii,  pp.  71-78,  Ch.  viii,  pp.  79-81; 
Amos,  Ch.  vi,  pp.  88-97;    Austin,  Lect.  xii,  pp. 
343-347,  Lect.  xvi,  pp.  393-398. 
(a)  14  St.  693  (694);  169  U.  S.  366. 


§  122.  Of  the  Legal  Definition  and  Assertion  of  Incidental 
Rights. 
For  the  most  part  natural  rights  in  becoming  legal  rights 
undergo  no  formal  change  in  character  or  comprehension  but 
are  defined  and  asserted  by  the  law  according  to  their  true 
nature  and  relations.  But  in  many  cases  the  practical  appli- 
cation of  the  law  to  the  protection  of  these  rights  requires 
the  adoption  of  artificial  means,  in  reference  to  the  use  of 
which  new  rights  arise,  having  apparently  no  other  origin 
than  the  immediate  fiat  of  the  State.  To  this  class  belong  all 
those  rights  which  pertain  to  the  operations  of  remedial  jus- 
tice, —  such  as  the  law  of  actions,  pleading,  evidence,  and 
procedure,  —  as  well  as  to  those  measures  which  the  State 
employs  in  enforcing  its  own  rights  against  the  persons  and 
property  of  its  citizens,  —  such  as  conscription,  taxation,  and 
eminent  domain.  Still  the  real  basis  of  these  rights  is  the 
natural  law.  For  the  law  of  natural  justice  dictates  that 
when  a  right  is  violated  the  wrong-doer  shall  make  adequate 
restitution.  The  nature  of  the  State  imposes  upon  it  the  duty 
to  compel  this  restitution  when  the  wrong-doer  fails  to  volun- 
tarily award  it,  and  in  the  performance  of  this  duty  to  adopt 
the  remedial  methods  which  are  best  suited  for  this  purpose 
in  view  of  the  circumstances  of  the  case.  In  like  manner  the 
law  of  nature  obliges  the  citizen  to  support  the  State  of  which 
he  is  a  member  and  authorizes  the  State  to  provide  means  by 
which  this  support  can  be  most  easily  and  effectively  sup- 


§  123  EIGHTS.  129 

plied.  Hence  whatever  rights  the  State  confers  on  individ- 
uals or  asserts  for  itself  in  the  fulfilment  of  these  duties, 
though  in  form  they  may  seem  technical  and  arbitrary  to  the 
last  degree,  nevertheless  derive  their  existence  from  the  same 
law  of  nature  as  the  rights  which  they  assert,  and  are  deter- 
mined even  as  to  their  form  by  events  and  conditions  which 
likewise  owe  their  origin  to  the  same  natural  Jaw.  Thus 
every  right  which  the  law  recognizes  is  either  an  essential 
natural  right  or  is  included  in  it  as  its  necessary  incident,  and 
consequently  rests  upon  the  same  authority,  is  indorsed  by 
the  same  sanction,  and  inheres  in  the  person  who  possesses  it 
as  his  natural  endowment,  and  not  as  a  mere  concession  of 
the  State. 


§  123.    Of  Rights  Public  and  Private. 

Legal  rights  are  divisible  into  Public  Rights  and  Private 
Plights.  Public  rights  are  those  which  inhere  in  the  State  or 
in  its  governmental  agents,  or  in  private  individuals  as 
against  the  State  or  its  agents.  The  rights  of  the  State,  taken 
together,  constitute  its  sovereignty,  or  the  authority  to  do 
whatever  may  be  necessary  for  the  common  good.  Enumera- 
tively,  they  are  the  right  to  receive  the  obedience  and  sup- 
port of  its  own  subjects  and  to  establish  such  relations  between 
itself  and  other  States  as  its  just  interests  require.  These 
rights  are  denned  in  part  by  the  general  provisions  of  inter- 
national, constitutional,  and  criminal  law.  and  in  part  by  the 
enactments  and  treaties  of  the  State  itself.  The  public 
rights  of  citizens,  sometimes  called  their  political  rights,  are 
the  right  to  the  protection  and  vindication  by  the  State  of 
their  private  legal  rights,  the  right  to  participate  in  the 
government  of  the  State  according  to  current  constitutional 
provisions,  and  the  right  to  be  free  from  the  interference  cf 
the  State  except  by  due  course  of  law.  Private  rights  are 
those  which  reside  in  natural  or  artificial  persons  in  their 
private  capacity  and  arc  assertible  only  against  other  private 

9 


130  AMERICAN   JURISPRUDENCE.         §§  124-126 

individuals.     They  include  all  legal  rights  of  persons  which 
are  not  strictly  of  a  public  character. 
Read  Holland,  Ch.  ix,  pp.  111-114. 


§  124.    Of  Rights  Normal  and  Abnormal. 

Legal  rights  are  also  divisible  into  Normal  Rights  and 
Abnormal  Eights.  Normal  rights  are  those  which  belong  to 
persons  having  a  normal  status.  Abnormal  rights  vest  in 
persons  whose  status  is  abnormal,  and  vary  from  normal 
rights  in  a  direction  and  degree  corresponding  to  the  devia- 
tion of  the  status  of  the  person  from  the  normal  standard. 
Thus  the  rights  of  an  artificial  person,  or  of  a  natural  person 
under  age  or  legal  disability,  are  normal  so  far  as  the  status 
is  normal,  and  in  other  respects  are  determined  by  its  pecu- 
liar characteristics. 

Read  Holland,  Ch.  ix,  pp.  122-124,  Ch.  xiv,  pp.  297,  298. 


§  125.    Of  Rights  in  Rem  and  in  Personam. 

Legal  rights  are  again  divisible  into  Eights  in  Rem  and 
Eights  in  Personam.  A  right  in  rem  is  a  right  assertible 
against  all  other  persons,  such  as  a  right  to  property  or  the 
right  of  personal  security  or  liberty.  A  right  in  personam 
is  a  right  assertible  only  against  one  or  more  specific  persons, 
such  as  the  right  of  a  father  over  his  child  or  of  one  contract- 
ing party  against  the  other.  The  same  distinction  is  some- 
times expressed  by  the  phrases  "rights  against  the  world" 
and  "rights  against  individuals." 

Read   Holland,  Ch.   ix,   pp.  128-130,  Ch.   xiii,  pp.  282-288; 
Markby,  §§  161-167;    Austin,  Lect.  xiv,  pp.  369-371. 


§  126.    Of  Rights  Antecedent  and  Remedial. 

Legal  rights  are  further  divisible  into  Antecedent  Eights 
and   Eemedial   Eights.     An  antecedent  right  inheres   in  a 


§  127  RIGHTS.  131 

person  irrespective  of  the  wrongful  acts  or  defaults  of  other 
persons.  It  may  be  a  right  conferred  on  him  by  nature,  like 
the  right  to  life  or  liberty,  or  it  may  be  a  right  arising  from 
some  lawful  act  of  other  persons,  such  as  a  gift,  a  contract, 
or  a  relation  voluntarily  established.  A  remedial  right  vests 
in  one  person  as  the  result  of  some  wrongful  act  or  default  of 
another.  It  consists  in  the  right  to  seek  and  obtain,  from 
the  law  or  otherwise,  redress  for  the  injury  inflicted  by  the 
commission  of  the  wrong. 

Read  Holland,  Ch.  ix.  p.  130. 


§  127.    Of  Normal  Antecedent  Rights  in  Rem. 

The  foregoing  divisions  of  legal  rights  into  normal  and 
abnormal,  in  rem  and  in  personam,  antecedent  and  remedial, 
furnish,  when  variously  grouped  together,  a  fourfold  classifi- 
cation under  which  the  particular  normal  rights  pertaining  to 
private  persons  may  be  conveniently  enumerated.  These 
four  classes  are :  (1)  Normal  antecedent  rights  in  rem ;  (2) 
Normal  antecedent  rights  in  personam  ;  (3)  Normal  remedial 
rights  in  rem  ;  (4)  Normal  remedial  rights  in  personam.  Nor- 
mal antecedent  rights  in  rem  are  those  rights  which  inhere  in 
persons  of  normal  status  irrespective  of  the  wrongful  acts  or 
defaults  of  other  persons,  and  are  assertible  against  all  man- 
kind. Of  such  rights  there  are  five:  (1)  The  right  of  per- 
sonal security;  (2)  The  right  of  personal  liberty;  (3)  Family 
rights  in  rem;  (4)  The  right  to  property;  (5)  The  right  to 
immunity  from  fraud.  The  right  of  personal  security  is  the 
right  to  the  legal  and  uninterrupted  enjoyment  of  life,  limbs, 
body,  health,  and  reputation,  (a)  The  right  of  personal 
liberty  is  the  right  of  a  person  to  control  his  own  acts  and 
forbearances  without  restraint  except  by  due  course  of 
law.  (I>)  A  family  right  in  rem  is  the  right  which  a  domestic 
superior  has,  as  against  all  other  persons,  to  the  control  of 
his  domestic  inferior.  Family  rights  are  often  identified  with 
"relative  rights"  because  they  attacli  to  the  relations  of  hus- 
band and  wife,  parent  and  child,  guardian  and  ward,  master 


132  AMERICAN   JURISPRUDENCE.  §  128 

and  servant;  but  they  are  rights  in  rem  only  in  reference  to 
the  superior;  as  to  the  inferior,  they  are  rights  merely  in 
'personam,  (c)  The  right  to  property  is  the  right  to  acquire, 
use,  and  dispose  of  property,  subject  to  no  interference  except 
that  of  the  law.  (d)  The  right  to  immunity  from. fraud  is  the 
right  of  one  person  to  honesty  and  fairness  on  the  part  of  all 
other  persons  in  every  transaction  where  their  intentional 
false  representations  might  lead  him  to  act  contrary  to  his 
own  interests,  (e) 

Read  Holland,  Ch.  xi,  pp.  148-166,  207-211;  Austin,  Lect.  xiv, 
pp.  371-373. 
(a)  Amos,  Ch.  vii,  pp.   123-133  ;    Cooley,  C.  Law,  Ch. 

xiii.  pp.  246-263. 
(6)  Lorimer,  Book  ii,  Ch.  i-v,  Book  iv,  Ch.  i;  Cooley, 
Const.  Lim.,  Ch.  x,  xii,  xiii;  4  St.  465  (468);  37  St. 
206  (208);  46  St.  315  (319,  320). 

(c)  1  Bl.  Com.,  pp.  134-138;  Austin,  Lect.  xiv,  pp.  373- 

378,  Lect.  xlvii,  pp.  783-789. 

(d)  1  Bl.  Com.,  pp.   138-140;   2  Bl.   Com.,    pp.    1-15; 

Cooley,  Const.  Lim.,  Ch.  xi,  pp.  351-369  ;  Amos, 
Ch.  viii,  pp.  148-167,  173-189;  Austin,  Lect.  xv, 
pp.  382-391,  Lect.  xlvii-lii,  pp.  789-856,  Lect.  liv- 
lvii,  pp.  870-905;  37  St.  206  (209);  14  D.  575, 
note ;  55  D.  403,  note. 

(e)  47  St.  489  (494,  495). 


§  128.    Of  Normal  Antecedent  Rights  in  Personam. 

Normal  antecedent  rights  in  personam  are  those  rights 
which  inhere  in  persons  of  normal  status,  irrespective  of  the 
wrongful  acts  or  defaults  of  other  persons,  but  are  assertible 
only  against  one  or  more  specific  individuals.  These  rights 
are  three:  (1)  Contractual  rights;  (2)  Fiduciary  rights;  (3) 
Family  rights  in  personam.  Contractual  rights  are  either 
Contract  rights,  or  Quasi-Cotxtvaxit  rights.  Contract  rights 
are  those  which  arise  out  of  agreements  between  two  or  more 
parties,  upon  sufficient  consideration,  to  act  or  forbear  to  act 
in  some  legal  and  possible  manner.  Quasi-Contvact  rights 
are  those  which  arise  without  a  contract  from  such  voluntary 


§  129  RIGHTS.  133 

acts  of  one  person  as,  in  justice  and  reason,  commit  him  to 
duties  or  confer  on  him  privileges  in  reference  to  other  per- 
sons. Instances  of  such  rights  are  the  right  of  one,  who  has 
volunteered  without  request  to  render  to  another  a  beneficial 
service,  to  be  compensated  therefor;  or  the  right  of  one,  who 
without  any  legal  or  moral  obligation  has  paid  money  under  a 
mistake  of  fact,  to  recover  it  from  the  payee.  Fiduciary 
rights  are  rights  arising  in  one  person  from  a  confidence  by 
him  reposed  in  and  accepted  by  another  either  as  incidental 
to  a' relation  or  by  virtue  of  some  transaction  between  them. 
Such  rights  are  the  right  of  one,  whose  property  has  been 
intrusted  to  another,  to  have  it  administered  according  to 
the  trust;  the  right  of  one  joint  owner  of  property,  which  is 
in  the  possession  of  the  other  joint  owner,  to  have  it  properly 
preserved  and  used  for  their  joint  benefit  or  equally  divided; 
or  the  right  of  one  party  to  a  relation  to  immunity  from  any 
fraudulent  advantage  which  might  be  taken  of  him  by  the 
other.  Family  rights  in  personam  are  those  which  the  parties 
to  the  domestic  relations  of  husband  and  wife,  parent  and 
child,  guardian  and  ward,  and  master  and  servant  possess 
only  against  each  other. 

Read  2  Bl.  Com.,  pp.  1 12-170 :  Holland,  Ch.  xii,  pp.  213-273; 
Ainos,  Ch.  vii.  pp.  141-144,  Ch.  ix,  pp.  190-227;  Aus- 
tin, Frag.  pp.  906-915. 


§  129.    Of  Normal  Remedial  Rights  in  Rem. 

Normal  remedial  rights  in  rem  are  those  which  are  vested 
in  persons  of  normal  status  as  the  result  of  some  wrongful 
act  or  default  on  the  part  of  other  persons,  and  are  assertible 
against  all  the  world.  These  rights  are  comparatively  rare, 
but  they  exist  in  certain  eases,  as  where  the  law  in  applying 
a  remedy  for  the  violation  of  a  right  by  one  wrong-doer  affirms 
tin'  right  conclusively  against  all  other  possible  invaders. 
Thus,  lor  example,  rights  of  property  in  vessels  arising  out 
of  maritime  liens  may  he  so  defined  and  vindicated  in  an 
action  between  two  immediate  contestants  as  to  liar  the  asser- 


134  AMERICAN    JURISPRUDENCE.  §§  130,  131 

tion  of  a  contrary  right  by  any  person  whatsoever;  or  a  decree 
divorcing  a  husband  and  wife  not  only  dissolves  the  relation 
as  to  them,  but  changes  their  legal  attitude  and  liability 
toward  all  mankind. 

Read  Holland,  Ch.  xi,  p.  148,  Ch.  xiii,  pp.  287,  288;  66  D. 
290  (295)  ;  75  D.  714,  note. 


§  130.    Of  Normal  Remedial  Rights  in  Personam. 

Normal  remedial  rights  in  personam  are  those  which  vest 
in  a  person  of  normal  status  as  the  result  of  some  wrongful 
act  or  default  on  the  part  of  another  person,  and  are  assert- 
ible  only  against  the  wrong-doer.  These  rights  are  four :  (1) 
The  right  of  the  injured  party  to  defend  himself  and  his 
property  against  an  attempted  wrong;  (2)  The  right  to  re- 
gain, by  a  reasonable  exercise  of  force,  the  possession  of  the 
property  or  privileges  of  which  he  has  been  wrongfully  de- 
prived; (3)  The  right  to  have  the  wrongful  act  or  default  pre- 
vented or  discontinued  by  the  intervention  of  the  courts;  (4) 
The  right  to  obtain  compensation  from  the  wrong-doer  through 
judicial  or  other  governmental  agencies. 

Read  3  Bl.  Cora.,  pp.  3-23  ;  Holland,  Ch.  xiii,  p.  287;  Walker, 
Lect.  xxxvii,  pp.  584-587. 


§  131.    Of  the  Extinguishment  and  Transfer  of  Legal  Rights. 

Legal  rights  may  be  extinguished,  or  at  all  events  may  lose 
their  legal  character,  identity,  or  assertibility,  in  four 
methods :  (1)  By  Merger  of  the  right  in  some  more  compre- 
hensive right,  as  where  a  debt  merges  in  a  judgment  or  a  less 
estate  in  a  greater  (a) ;  (2)  By  Waiver,  or  the  intentional 
relinquishment  of  a  known,  legal  right  by  its  owner,  mani- 
fested by  deliberate  and  unequivocal  acts  or  words  (b)  ;  (3)  By 
Forfeiture,  as  where  the  owner  of  a  legal  right  on  account  of 
his  misconduct  or  laches  (c)  or  the  position  in  which  he  has 
voluntarily  led  other  persons  to  place  themselves  (d) ,  is  either 


§  132  duties.  135 

deprived  of  the  possession  of  the  right,  or  is  forbidden  by  the 
law  to  assert  it  against  any  person,  or  is  estopped  from  vindi- 
cating it  against  those  persons  whom  if  he  did  assert  it  he 
would  then  have  misled  to  their  injury;  (4)  By  Satisfaction, 
which  exhausts  the  right  by  vesting  in  its  owner  the  complete 
object  or  privilege  to  which  the  right  pertains.  Private  legal 
rights  are  also  capable  of  transfer  by  their  owner  so  far  as 
their  nature  will  permit,  subject  to  such  restrictions  as  may 
be  necessary  for  the  common  good. 

Read  Holland,  Ch.  x,  pp.  137,  138,  Ch.  xii,  pp.  273-276,  Ch. 

xiii,  pp.  293-296. 
(a)  15  D.  78,  note. 
(6)  85  D.  240  (245) ;  31  R.  42,  note;  72  D.  738,  note;  78 

D.  1S6,  note;  31  R.  31,  note ;  17  D.  238,  note. 
(c)  54  D.  126,  note. 
(</)  16  D.  741,  note;    57  R.  424,  note;    38  D.  628,  note; 

63  D.  665,  note. 


SECTION   II. 

OF    DUTIES. 

§  132.    Of  the  Relation  between  Rights  and  Duties. 

The  inherence  of  a  right  in  one  person  imposes  upon  other 
prisons  the  obligation  to  respect  it.  This  obligation,  equally 
with  the  right,  has  its  origin  in  the  natural  law,  since  the 
right  could  not  be  practically  enjoyed  unless  the  individuals 
against  whom  it  must  be  exercised,  if  exercised  at  all,  acqui- 
esced either  voluntarily  or  involuntarily  in  its  enjoyment. 
The  existence  of  the  right  thus  creates  the  obligation,  and 
hence  the  obligation  is  commensurate  with  the  right  in  char- 
acter, in  scope,  and  in  the  number  of  persons  upon  whom  it  is 
imposed.  This  obligation  being  pi-escribed  by  reason  and 
justice,  and  not  by  an  exterior  physical  force,  is  properly 
called  a  "duty''  or  the  practical  recognition  of  that  which  is 
due  to  another  by  virtue  of  the  right  residing  in  him. 

Read  Lorimer,  Book  i.  Ch.  xi  ;  Austin,  I^ect.  xvii,  pp.  400- 
407. 


136  AMERICAN   JURISPRUDENCE.  §  133 

§  133.    Of  Legal  Duties. 

Legal  duties  correspond  to  legal  rights.  Wherever  a  nat- 
ural right  receives  the  sanction  of  the  laws,  and  thus  becomes 
a  legal  right,  a  legal  obligation  to  respect  the  right  immedi- 
ately rests  upon  all  persons  by  whom  the  right  could  be  vio- 
lated. The  field  of  legal  duty  is  thus  identical  with  that  of 
legal  right.  Some  authors  have,  indeed,  attempted  to  distin- 
guish a  class  of  legal  duties  to  which  there  were  no  corre- 
sponding legal  rights,  such,  for  example,  as  the  legal  duty  to 
refrain  from  cruelty  to  animals,  from  suicide,  from  conspir- 
ing against  foreign  States,  and  from  disrespect  to  objects  of 
religious  worship.  But  this  attempt  is  grounded  in  an  error 
which  first  assumes  that  the  only  rights  invaded  by  these 
actions  are  the  rights  of  animals  against  mankind,  the  rights 
of  man  against  himself,  the  rights  of  foreign  governments,  or 
the  rights  of  the  Creator  against  his  creatures,  —  none  of 
which,  of  course,  are  strictly  legal  rights;  and,  secondly, 
ignores  the  fact  that  every  political  society  has  the  right  to 
protect  itself  against  the  outrage  of  its  sensibilities  occasioned 
by  the  first  offence,  against  the  loss  of  its  own  members 
occasioned  by  the  second,  against  the  international  complica- 
tions occasioned  by  the  third,  and  against  the  shock  to  its 
ideals  or  the  degradation  of  its  moral  character  occasioned  by 
the  fourth.  The  State  has  the  natural  right  to  enact  what- 
ever laws  the  physical,  economical,  intellectual,  moral,  or 
spiritual  welfare  of  its  people  or  its  own  national  peace  and 
security  may  demand;  and  having  enacted  such  laws  it  has 
the  legal  right  to  have  them  obeyed,  irrespective  of  the  fact 
that  the  beings  or  persons  whose  natural  rights  they  protect 
may  be  beyond  its  sphere.  Thus  whether  the  State  creates  a 
legal  duty  by  directly  imposing  it  upon  the  citizen,  or  by  giv- 
ing legal  sanction  to  some  natural  right  out  of  which  the  duty 
springs,  there  is  always  a  legal  right  to  which  the  duty  cor- 
responds, and  if  this  legal  right  does  not  reside  in  persons 
who  are  under  the  protection  of  the  State,  it  does  reside  in 
the  State  itself,  whose  legal  right  to  the  obedience  of  its 
subjects  no  one  can  call  in  question.  The  fact  that  the  four 
acts  above  described,  when  noticed  by  the  law  at  all,  are  uni- 


§§  134,  135  duties.  137 

formly  punished  as  crimes  against  the  State,  shows  at  once 
whose  rights  the)'  infringe  and  to  whom  the  duties  which  they 
violate  are  due. 

Read  Austin,  Lect.  xxii,  xxiii,  pp.  443-457,  Lect.  xxvii,  pp. 

499-307. 


i;  134.    Of  the  Classes  of  Legal  Duties. 

The  divisions  of  legal  rights  already  given  indicate  the 
corresponding  classes  of  legal  duties.  A  public  legal  duty  is 
the  obligation  to  respect  the  public  rights  of  the  State,  of  its 
governmental  agents,  and  of  its  members  considered  in  their 
capacity  of  citizens.  A  private  legal  duty  is  the  obligation 
not  to  hinder  nor  curtail  the  enjoyment  of  the  private  legal 
rights  of  natural  or  artifical  persons.  Normal  legal  rights 
impose  general  legal  duties,  applicable  to  persons  of  normal 
status.  Abnormal  legal  rights  give  rise  to  exceptional  and 
variable  legal  duties  according  to  the  character  and  degree  of 
the  abnormal  status.  Legal  rights  in  rem  place  all  mankind 
under  the  corresponding  legal  obligations.  Legal  rights  in 
personam  create  legal  duties  only  in  reference  to  the  indi- 
viduals against  whom  the  rights  subsist.  Antecedent  legal 
rights  elicit  primary  legal  duties  securing  such  rights  against 
violation.  Remedial  legal  rights  involve  secondary  or  com- 
pensatory duties,  affording  to  the  owner  of  the  violated  right 
a  proper  satisfaction  for  the  wrong  he  has  sustained.  The 
individual  duties  embraced  in  these  divisions  need  not  be 
enumerated  nor  their  specific  character  explained,  since  they 
are  already  sufficiently  suggested  by  the  description  of  the 
rights  to  which  they  correspond. 


§  135.    Of  the  Relation  of  Duty  to  Status. 

This  correspondence  between  legal  rights  and  legal  duties, 
both  in  their  uumber  and  essential  nature,  does  not,  however, 
imply  that  the  legal  duty  presses  equally  upon  every  person 
without  reference  to  his  own  status.  Even  the  duties  which 
are  imposed  on  all  mankind  by   rights  in  rem  do  not  entail 


138  AMERICAN    JURISPRUDENCE.  §  136 

the  same  obligations  upon  natural  and  artificial  persons,  upon 
public  officers  and  private  citizens,  upon  adults  and  infants, 
upon  the  insane  and  the  sane.  Differences  of  status  create 
differences  of  duty  as  well  as  differences  of  right,  and  what 
has  been  explained  in  detail  under  that  title  in  a  previous 
chapter  must  be  taken  as  a  part  of  this  and  of  every  other  dis- 
cussion concerning  rights,  duties,  or  wrongs. 


§  136.    Of  Acts  and  Forbearances. 

In  reference  to  the  nature  of  the  conduct  which  they  in- 
volve, legal  duties  consist  either  of  acts  or  forbearances.  An 
act  is  a  voluntary  external  movement  of  the  whole  or  a  part  of 
the  body  of  a  person.  In  it  two  forces  concur,  — the  physical 
organism  and  the  will.  All  other  movements  of  the  body 
are  mere  casual  events,  not  imputable  to  the  person  because 
not  prompted  by  his  intellect  nor  governed  by  his  will.  Acts, 
thus  defined,  include  the  active  and  intentional  exercise  of 
the  senses  of  sight,  smell,  taste,  and  hearing  as  well  as  of  the 
faculties  of  speech  and  touch,  and  without  reference  to  the 
degree  of  force  which  any  of  these  operations  may  require. 
A  forbearance  is  a  voluntary  omission  to  act  when  action  is 
possible.  Legal  duties  consisting  of  acts  are  called  "posi- 
tive" duties;  those  consisting  of  forbearances  are  called 
"negative'"'"  duties.  A  large  proportion  of  legal  duties  are  of 
the  latter  class.  Those  answering  to  normal  antecedent 
rights  in  rem,  with  very  few  exceptions,  are  mere  forbear- 
ances. Many  of  those  imposed  by  normal  antecedent  rights 
in  personam,  especially  of  those  growing  out  of  certain  species 
of  contracts,  are  of  the  same  character.  On  the  other  hand, 
those  corresponding  to  abnormal  rights,  or  to  remedial  rights, 
or  to  normal  antecedent  rights  in  personam  based  on  other 
species  of  contracts  or  on  ^Mcm-eontracts,  or  on  domestic  rela- 
tions, generally  require  the  performance  of  acts  on  the  part 
of  those  against  whom  the  right  subsists. 

Head  Holland,  Ch.  viii,  pp.  92-109;  Markby,  §§  214-235; 
Amos,  Ch.  vi,  pp.  99-116;  Austin,  Lect.  xiv,  pp.  365- 
369. 


§§  137,  138  duties.  139 

§  137.  Of  the  Distinction  between  Positive  and  Negative 
Duties 
A  principal  distinction  between  negative  and  positive 
duties  resides  in  the  fact  that  negative  duties  can  be  per- 
formed only  by  the  persons  charged  with  the  duty,  while  posi- 
tive duties  may  sometimes  be  performed  either  by  such 
persons  or  their  authorized  agents,  or  even  by  unauthorized 
persons  upon  their  behalf.  A  forbearance  by  a  person  who  is 
under  no  legal  obligation  to  forbear  never  can  legally  take  the 
place  of  the  forbearance  of  the  persons  upon  whom  the  duty 
of  forbearance  rests,  since  the  right  to  which  the  duty  of  for- 
bearance corresponds  is  completely  violated  by  the  failure  of 
the  obligated  person  to  forbear,  though  every  other  person  in 
the  world  should  carefully  refrain  from  any  interference  with 
the  right.  Thus,  for  example,  if  a  manufacturer  were  to  sell 
his  factory,  together  with  its  business  and  good-will,  and 
covenanted  with  the  buyer  not  to  start  a  rival  factory  in  that 
vicinity,  yet  broke  his  covenant  and  did  so,  it  is  apparent  that 
the  rights  of  the  buyer  are  invaded  as  effectually  as  they  could 
ever  be,  though  no  other  maker  of  the  same  commodities 
attempted  to  establish  any  similar  competing  enterprise. 
But  if  the  duty  of  the  selling  manufacturer  had  been  a  posi- 
tive one,  such  as  maintaining  the  ponds  from  which  the  water 
power  was  to  be  supplied  at  a  given  height  and  area,  and 
failing  to  do  this  himself  the  same  acts  were  performed  on 
his  behalf  either  by  his  agents  or  some  interested  relative, 
the  buyer  would  sustain  no  loss  of  privilege  and  consequently 
no  violation  of  his  rights.  In  cases,  however,  where  the  act 
to  be  performed  involves  judgment  and  discretion,  only  the 
person  upon  whom  the  duty  rests  can  legally  discharge  it. 
Read  Markby,  §§  181-192. 


§  138.    Of  the  Extinguishment  of  Duties. 

An  obligation  ceases  either  upon  the  performance  of  the 
duty  or  the  extinction  of  the  right.  Where  the  individual  in 
whom  the  right  inheres  intentionally  relinquishes  it,  or  is 
guilty  of  an  act  or  default  which  works  its  legal  forfeiture, 


140  AMERICAN   JURISPRUDENCE.  §  139 

the  persons  against  whom  it  might  previously  have  been 
enforced  are  no  longer  bound  to  notice  or  regard  it.  (a)  Such 
an  extinction  of  the  right  may  take  place  in  favor  of  all  per- 
sons upon  whom  the  obligation  rests,  or  upon  one  or  more  of 
them,  remaining  in  its  full  validity  against  the  others.  But 
the  complete  performance  of  the  duty,  by  any  one  who  has 
the  power  to  do  so,  satisfies  the  right  and  thereupon  the 
obligation  ceases,  not  only  as  to  him  by  whom  it  was  per- 
formed, but  as  to  all  others  upon  whom  th£  duty  was  im- 
posed, (b)  The  owner  of  a  tract  of  land,  for  instance,  may 
waive  his  right  to  exclude  from  it  certain  persons  without  im- 
pairing the  obligation  of  all  other  persons  to  keep  outside  its 
boundaries.  But  if  one  of  several  joint  trespassers  thereon, 
all  of  whom  are  bound  to  make  him  compensation  for  the 
injury,  pa}-s  him  a  sum  equivalent  to  the  damage  which  he 
has  sustained,  the  duty  is  discharged  as  to  all  and  his  right  to 
compensation  ceases  to  exist.  Negative  duties  which  corre- 
spond to  rights  in  rem  cannot,  however,  be  completely  per- 
formed by  any  number  of  persons  less  than  all  mankind,  and 
consequently  these  duties,  like  their  originating  rights,  con- 
tinue until  the  rights  themselves  are  waived  or  forfeited  or 
all  the  persons  in  whom  they  inhere  cease  to  exist. 

Read  Holland,  Ch.  xii,  pp.  276-281. 
(a)  39  St.  577,  note. 
(6)  14  R.  60. 

SECTION    III. 

OF    WRONGS. 

§  139.    Of  the  Nature  and  Scope  of  Legal  Wrongs. 

A  legal  wrong  is  the  failure  to  discharge  a  legal  duty,  and 
consequently  consists  in  some  act  or  forbearance  in  violation 
of  a  legal  right.  Where  the  duty  is  positive  it  is  not  fulfilled, 
and  therefore  a  wrong  is  committed,  unless  the  obligatory 
act  is  precisely  and  completely  performed.  Thus,  for  exam- 
ple, the  duty  of  a  lessee  to  surrender  the  leased  premises  to 
the  lessor,  on  a  day  stipulated  in  the  lease  (which  is  a  posi- 


§  139  WRONGS.  141 

tive  duty),  is  not  discharged  by  the  relinquishment  of  any 
fraction  of  the  premises,  however  great,  at  the  appointed 
time,  nor  of  the  entire  premises  at  any  later  date.  Hence 
wrongs  against  positive  duties  admit  of  degrees.  Although 
it  is  a  wrong,  yet  it  is  obviously  a  smaller  wrong  for  the 
lessee  to  delay  the  surrender  of  the  premises,  or  to  temporarily 
withhold  a  part,  than  to  permanently  retain  the  whole;  or  for 
a  debtor  to  let  pay-day  pass  without  a  payment  than  never  to 
pay  his  debt  at  all;  or  for  a  husband  or  a  father  to  afford 
inadequate  protection  to  his  wife  or  children  than  to  utterly 
neglect  them;  or  for  a  criminal  to  passively  disobey  the  law« 
than  to  rebel  openly  against  the  State.  And  though  it  is  as 
true  of  one  degree*  as  of  the  other  that  rights  have  been  in- 
vaded and  duties  unperformed,  still  the  injury  inflicted  or  the 
guilt  incurred,  and  the  restitution  to  be  made  or  the  penalty 
endured,  are  manifestly  not  the  same  in  measure  and  severity. 
For  this  reason  wrongs  which  violate  positive  duties  are  com- 
plex and  scarcely  capable  of  enumeration,  vastly  exceeding  in 
variety  the  rights  which  they  attack,  lint  on  the  contrary, 
when  the  duty  is  negative,  no  act  less  than  the  whole  act 
which  the  negative  duty  forbids  can  transgress  the  duty  or 
constitute  a  wrong.  The  duty  not  to  commit  fraud  by  inten- 
tionally misleading  others  to  their  injur}',  for  instance  (which 
is  a  negative  duty),  is  not  infringed  by  unintentional!}-  mis- 
leading them,  nor  by  an  ineffectual  endeavor  to  mislead  them, 
nor  by  intentionally  misleading  them  without  resulting 
loss.  (")  Wrongs  against  negative  duties  thus  admit  of  no 
degrees.  The  duty  and  the  right  out  of  which  it  arises  are 
precise  and  specific,  and  the  duty  to  respect  the  right  cannot 
be  violated  by  any  act  less  than  or  different  from  the  one 
proscribed.  Wrongs  against  negative  duties  are  consequently 
few  and  simple,  their  number,  nature,  and  effects  being  clearly 
indicated  by  the  statement  and  description  of  the  rights  which 
they  invade. 

Read  Markby,  §§  592-602;  Austin.  Lect.  xviii-xix,  pp.  410- 
121,  beet,  xxi,  pp.  43.">-4b>.  beet,  xxiv-xxvi,  pp. 
457-499. 
(</)  SI  I).  :!71:  72  D.  039;  32  \\.  562. 


142  AMERICAN   JURISPRUDENCE.  §§  140,  141 

§  140.    Of  Malfeasances,  Misfeasances,  and  Nonfeasances. 

Wrongs  are  divisible,  according  to  the  nature  of  the  acts  or 
forbearances  of  which  they  consist,  into  Malfeasances,  Mis- 
feasances, and  Nonfeasances.  Malfeasance  is  the  doing  of 
that  which  it  was  the  duty  of  the  doer  not  to  do.  Misfeas- 
ance is  the  doing  in  an  unlawful  manner  of  that  which  the 
doer  was  either  bound  to  do  or  had  the  right  to  do.  Nonfeas- 
ance is  the  not  doing  of  that  which  it  was  the  duty  of  the 
non-doer  to  do.  Malfeasance  thus  implies  an  act  and  non- 
feasance a  forbearance;  but  misfeasance  may  assume  the  form 
either  of  an  act  or  a  forbearance;  of  an  act,  when  the  mis- 
feasance consists  in  carrying  the  lawful  act  to  an  unlawful 
excess  either  in  quantity  or  method;  of  a  forbearance,  when 
the  act,  although  performed,  falls  short  in  quantity  or 
method  of  what  the  law  requires.  Malfeasances  and  such 
misfeasances  as  assume  the  form  of  an  act  therefore  involve 
the  idea  of  intentional  wrong-doing,  —  a  positive  aggressive 
invasion  of  the  rights  of  others.  Nonfeasances  and  the  mis- 
feasances consisting  in  forbearance  are  due  to  negligence, 
either  a  simple  negligence  inadvertent  of  the  rights  of  others 
and  inert  in  responding  to  the  demands  of  duty,  or  a  gross 
negligence  conscious  of  rights  and  duties  but  wantonly  and 
purposely  refusing  to  regard  them,  («) 

Read  Holland,  Ch.  xiii,  pp.  288-293 ;  Austin,   Lect.   xx,  pp. 
425-433. 
(a)  90  D.  49  (52);  12  St.  698,  note;  87  D.  644;  48  St. 
132  (136,  137);  8  St.  624  (625,  626). 


§  141.    Of  Public  Wrongs. 

The  classification  of  wrongs  according  to  the  nature  of  the 
rights  which  they  invade  necessarily  follows  that  of  rights 
and  duties.  Wrongs  which  infringe  public  legal  rights  are 
public  wrongs.  Wrongs  which  violate  private  rights  are 
private  wrongs.  An  act  or  forbearance  which  transgresses 
both  public  and  private  rights,  as  is  sometimes  the  case,  is  in 
its  fornipr  character  a  public  wrong,  and  in  its  latter  character 


§  142  wrongs.  143 

a  private  wrong.  Public  wrongs  are  in  most  cases  prosecuted 
and  punished  by  the  State  by  proceedings  instituted  by  it  of 
its  own  accord  and  in  its  own  name,  and  are  then  known  as 
"crimes."  In  other  casts  they  are  met  by  peculiar  measures 
adapted  to  the  individual  wrong,  such  as  the  removal  from 
office  of  those  who  neglect  their  public  duties,  the  arbitrary 
increase  of  the  taxes  of  persons  who  conceal  their  taxable 
property,  the  confiscation  of  smuggled  importations,  the  com- 
mitment for  contempt  of  jurors,  witnesses,  and  other  indi- 
viduals who  refuse  to  obey  a  legal  mandate  of  the  courts,  (a) 
In  still  other  cases  the  public  wrong  passes  unnoticed  by  the 
State,  either  because  it  is  regarded  by  the  popular  judgment 
as  of  slight  importance,  or  because  no  adequate  mode  of  deal- 
ing with  it  has  yet  been  contrived.  Where  public  wrongs 
also  involve  a  violation  of  private  rights,  the  remedy  of  the 
injured  party  against  the  wrong-doer  is  usually  the  same  as 
if  the  wrongful  act  or  forbearance  had  no  public  character.  (/>) 

Read  4  151.  Com.,  pp.  5-7;  Amos,  Ch.  x,  pp.  228-263. 

(a)  16  St.  813;  50  D.  68. 

[b)  60  D.  698  ;  28  R.  45,  note. 


§  142.    Of  the  Ingredients  of  a  Private  Wrong. 

Every  private  legal  wrong  contains  two  ingredients;  the 
wrongful  act  or  forbearance  of  the  wrong-doer,  called  the 
injuria,  and  the  resulting  loss  to  the  injured  party,  called 
the  damnum.  Under  the  term  injuria  the  law  includes  every 
action  and  forbearance  which  does  not  lie  within  the  sphere 
of  the  actor's  or  forbearor's  legal  rights.  Under  the  term 
damnum  it  embraces  every  form  of  loss,  actual  or  implied. 
which  it  regards  as  capable  of  flowing  from  a  violation  of 
the  legal  rights  of  the  person  who  sustains  the  loss.  Injuria 
and  damnum  concur  whenever  one  person  performs  an  act 
which  he  had  no  legal  right  to  perform,  or  omits  an  act  which 
he  had  no  legal  right  to  omit,  and  as  a  consequence  of  his 
action  or  omission  some  other  person  suffers  a  loss,  —  either 
an  actual  loss  or  a  loss  implied  by  law,  — from  which  he  had 


144  AMERICAN   JURISPRUDENCE.  §  143 

a  legal  right  to  be  exempt.  An  injuria  sine  damno,  or  an 
unlawful  act  which  causes  no  loss,  of  which  the  law  will  take 
notice,  to  another  party  in  violation  of  his  legal  rights,  is  not 
a  private  wrong,  though  it  may  be  a  public  one,  and  a  damnum 
absque  injuria,  or  a  loss  of  which  the  law  could  otherwise 
take  notice  but  which  in  this  case  has  resulted  from  a  lawful 
action  or  forbearance,  is  not  a  violation  of  a  legal  right,  since 
the  legal  rights  of  one  person  can  never  be  infringed  by  the 
lawful  actions  or  omissions  of  another,  (a)  Hence  the  truth 
of  the  ancient  maxims  that  neither  from  damnum  absque 
injuria  nor  from  injuria  sine  damno  can  any  suit  at  law  arise; 
for  in  the  first  case  the  actor  or  forbearor  has  kept  within 
his  legal  rights,  and  in  the  second  the  legal  rights  of  the 
person  who  sustains  the  loss  have  never  been  infringed. 

Read  (a)  8  D.  369. 


§  143.    Of  the  Distinction  between  Torts  and  Breaches  of  Con- 
tract. 

Private  legal  wrongs  are  sometimes  called  "torts,"  a  gen- 
eric name  employed  to  distinguish  them  from  crimes.  But 
in  the  language  of  the  English  and  American  law  this  name 
is  usually  confined  to  private  wrongs  which  do  not  consist  in 
the  failure  to  perform  the  obligations  of  a  contract  or  a  quasi- 
contract,  or  to  discharge  the  duties  growing  out  of  legal  rela- 
tions between  the  wrong-doer  and  the  injured  party.  Though 
this  distinction  between  torts  and  other  private  wrongs  may 
not  be  philosophically  correct,  yet  it  is  so  deeply  imbedded 
in  our  law  that  it  cannot  now  be  obliterated  or  ignored. 
Upon  it  are  based  many  differences  in  forms  of  actions,  modes 
of  procedure,  and  the  scope  and  application  of  judicial  reme- 
dies ;  and  thus  there  has  gradually  arisen  a.  division  of  private 
wrongs  into  the  two  classes,  —  torts  and  breaches  of  contract, 
—  which  are  separated  from  one  another  not  so  much  by  any 
permanent  variation  in  character  as  by  the  dissimilar  modes 
in  which  the  injured  parties  seek  and  find  redress.  Between 
these  classes,  however,  no  sharp,  inflexible  line  of  demarca- 


§  144  wrongs.  145 

tion  can  be  drawn.  Many  acts  and  forbearances  which  are 
violations  of  contract  or  of  relative  rights  are  also  torts,  and 
would  be  torts  even  if  no  contract  or  relation  had  ever  sub- 
sisted between  the  parties ;  and  in  such  cases  the  injured  party 
may  pursue  his  remedy  either  for  the  tort  or  breach  of  con- 
tract or  for  both,  although  he  can  recover  but  one  complete 
satisfaction  for  the  wrong. 

Read  3  Bl.  Com.,  pp.  118,  119:  17  D.  238,  note. 


§  144.    Of  Breaches  of  Contract. 

Of  what  acts  or  forbearances  a  breach  of  contract  consists 
the  contract  itself  in  its  true  legal  interpretation  must  deter- 
mine. Anything  less  than  the  complete  performance  of  the 
contract  according  to  its  terms  is  such  a  breach,  though  of 
immaterial  and  minute  variations  from  its  letter,  working  no 
harm  to  either  party,  the  courts  are  not  inclined  to  take 
notice,  provided  the  substantial  benefits  of  the  agreement  are 
secured.  (a)  Thus  a  contract  to  pay  money  on  a  certain  day 
is  substantially  performed  by  its  payment  at  a  subsequent  day 
with  the  lawful  interest  accruing  during  the  interval,  and  the 
acceptance  of  the  money  with  its  interest  by  the  creditor,  or 
even  its  tender  by  the  debtor,  is  a  satisfaction  of  the  rights 
created  by  the  contract  although  it  has  not  been  literally  ful- 
filled. But  the  failure  of  one  party  to  perform  any  essential 
provision  of  the  contract  is  a  wrong  whether  or  not  the  other 
party  suffers  actual  loss,  since  the  wrong  consists  not  in  the 
disastrous  consequences  which  follow  an  invasion  of  the  right 
but  in  the  invasion  of  the  right  itself,  the  law  adverting  to 
thr  consequences  only  to  ascertain  the  amount  of  compensa- 
tion which  the  injured  party  is  entitled  to  recover.  In  like 
manner  the  duties  growing  out  of  a  qzta si-contvact  or  a  legal 
nlatioii  between  the  parties  define  the  nature  and  extent 
of  any  wrong  by  which  the  rights  of  either  party  may  be 
violated. 

Read  3  151.  Com.,  pp.  153-166;  Markby,  §§  G03-GGG. 
(«)  32  I).  518 j  7 -2  I).  142. 
10 


146  AMERICAN   JURISPRUDENCE.  §§  145,  146 

§  145.    Of  Torts. 

To  the  class  of  torts,  technically  so  called  according  to  our 
law,  belong  all  private  malfeasances  which  do  not  consist 
purely  in  the  commission  of  some  act  that,  but  for  the  con- 
tract or  relation  into  which  he  has  entered,  the  doer  would 
have  had  a  right  to  do.  Such  are  all  acts  against  security, 
liberty,  property,  or  family  rights,  unless  performed  in  the 
lawful  assertion  of  a  private  right,  or  by  the  lawful  consent 
of  the  injured  party,  or  in  the  exercise  of  legal  authority;  and 
also  all  acts  of  positive  and  intentional  fraud  resulting  in 
pecuniary  loss  to  the  person  deceived.  In  the  same  class 
are  comprised  all  private  nonfeasances  which  consist  in  the 
failure  to  discharge  some  duty  imposed  by  law  upon  all  per- 
sons or  on  all  persons  of  a  certain  group  in  which  the  non- 
feasor  is  included;  and  all  private  misfeasances  which  consist 
in  acts  exceeding  the  measure  of  the  actor's  legal  right  or  in 
forbearances  by  which  a  general  legal  duty  is  imperfectly 
discharged.  Most  of  these  torts  are  violations  of  rights  in 
rem,  though  some  infringe  duties  which  originate  in  contracts 
or  relations,  while  wrongs  against  rights  in  rem  are  always 
torts  even  when  such  rights  have  been  fortified  by  special 
relations  or  agreements  which  are  also  violated  by  the  perpe- 
tration of  the  wrong. 

Read  3  Bl.  Cora.,  pp.   119-153,   166-174,  208-242;  Markby, 
§§667-716;  88  D.  503. 


§  146.    Of  the  Relation  of  Wrongs  to  Status. 

The  complete  capacity  to  commit  legal  wrongs  resides  in 
persons  of  normal  status  alone.  Such  persons  not  only 
possess  all  legal  rights  but  are  subject  to  all  legal  duties,  and 
are  consequently  able  to  infringe  them.  But  persons  of 
abnormal  status  are  at  once  limited  in  rights,  in  obligations, 
and  in  ability  to  perpetrate  wrongs,  according  to  the  peculiar 
characteristics  attached  by  the  law  to  their  status,  and  out- 
side those  limitations  cannot  be  guilty  of  a  tort,  a  breach  of 
contract,  or   a  crime,  whatever  may  be   the  nature  of  their 


§  147  wrongs.  147 

actions  or  omissions  or  the  injuries  to  others  in  which  they 
result.  Thus  an  infant  does  not  break  a  contract  by  failing 
to  perform  his  agreements  other  than  those  for  necessaries; 
an  idiot  does  not  become  guilty  of  a  murder  by  the  inten- 
tional killing  of  his  neighbor;  a  married  woman  did  not,  under 
our  earlier  laws,  violate  a  private  right  by  any  acts  of  violence 
against  others  in  which  she  might  engage.  The  consideration 
of  the  status  of  the  alleged  wrong-doer,  as  well  as  that  of  the 
owner  of  the  right  which  is  or  is  supposed  to  be  violated, 
must,  therefore,  enter  into  every  question  concerning  the  ex- 
istence of  a  legal  wrong. 


§  147.    Of  the  Extinguishment  of  Wrongs. 

A  legal  wrong  may  be  extinguished  by  the  person  whose 
rights  it  has  invaded,  provided  the  consent  of  the  wrong-doer 
is  obtained.  Where  the  State  thus  obliterates  a  public 
wrong  its  act  is  called  a  ''pardon,"  and  may  be  absolute,  — 
taking  effect  at  all  events,  or  be  conditioned  upon  the  conduct 
of  the  person  pardoned.  It  extinguishes  not  merely  the  lia- 
bility to  prosecution  and  punishment  but  also  the  very  im- 
putation of  the  crime,  so  that  the  wrong-doer  is  no  longer  re- 
garded by  the  law  as  having  been  guilty  of  the  crime.  To  the 
validity  of  a  pardon  its  acceptance  by  the  criminal  is  necessary 
and  its  effect  is  limited  to  the  particular  wrongs  enumerated 
in  the  grant  by  which  it  is  conferred,  (a)  The  commutation 
of  a  penalty,  though  like  a  pardon  an  act  of  sovereign  grace, 
is  not  in  any  sense  a  pardon,  since  it  operates  upon  the  pun- 
ishment alone  and  does  not  purport  to  affect  the  crime,  (b) 
The  condonation  of  a  private  wrong  by  the  injured  party  may 
be  gratuitous  or  upon  consideration,  and  when  gratuitous 
may  be  irrevocable  or  subject  to  recall  upon  a  repetition  of 
the  wrong.  Instances  of  such  condonation  occur  where  a 
creditor  accepts  the  aim  unit  due  him  after  the  date  when  it 
should  have  been  paid,  or  a  wife  admits  an  adulterous  hus- 
band to  his  conjugal  privileges  alter  she  has  notice-  of  his 


148  AMERICAN    JURISPRUDENCE.  §  148 

adultery,  or  any  injured  party  releases  the  wrong-doer  upon 
the  receipt  of  some  satisfaction  for  the  wrong,  (c) 

Read  4  Bl.  Com.,  pp.  394-402  ;  Cooley,  C.  Law,  Ch.  v,  pp.  115- 
117. 

(a)  84  D.  431,  note ;  59  D.  566,  note ;  7  Pet.  150 ;  48  R. 

462  ;  19  D.  679,  note  ;  49  R.  684  ;  30  R.  395 ;  31  R. 
385. 

(b)  18  How.  307. 

(c)  52  D.  561 ;  46  R.  476 ;  41  D.  370 ;  100  D.  752. 

SECTION    IV. 

OF    REMEDIES. 

§  148.    Of  the  Relation  of  Remedies  to  Wrongs. 

The  commission  of  a  legal  wrong  vests  in  the  injured  party 
a  remedial  right.  It  is  a  maxim  of  the  law  that  "  Ubi  jus  ibi 
remedium,"  or  wherever  a  legal  right  exists  to  be  invaded  the 
law  will  give  redress  when  it  is  violated.  The  complete 
infliction  of  the  injury  thus  immediately  calls  into  existence 
the  remedial  right.  Where  the  wrong  is  iustantaneous,  like  an 
act  of  violence,  it  becomes  complete  at  once,  and  the  remedial 
right  may  be  forthwith  asserted.  Where  it  consists  in  some 
neglect  of  duty  further  steps  may  be  essential  on  the  part  of 
the  injured  person,  such  as  a  demand  upon  the  other  person 
to  perform  the  duty,  before  the  omission  will  be  recognized 
as  a  legal  wrong,  (a)  Where,  though  the  wrongful  act  or 
forbearance  is  itself  perfected,  the  loss  which  it  is  likely  to 
entail  remains  in  abeyance,  awaiting  the  occurrence  of  condi- 
tions in  which  it  may  fall  with  its  full  weight  upon  the  owner 
of  the  violated  right,  the  vesting  of  the  remedial  right  is  also 
suspended  until  the  loss  has  been  endured,  (b)  This  legal 
connection  between  the  wrong  and  the  remedy  only  the  ex- 
tinguishment of  the  wrong  can  interrupt;  the  remedial  right 
following  the  infringement  of  the  antecedent  right  as  any 
other  effect  follows  from  its  cause. 

Read  1  Bl.  Com.,  pp.  56-58,  141-145  ;  3  Bl.  Com.,  p.  23. 
(a)  76  D.  174  ;  77  D.  468,  note;  40  D.  310,  note. 
(6)  17  D.  782;  70  D.  638. 


§§  149,  150  REMEDIES.  149 

§  149.    Of  the  Primary  Purpose  of  Remedies. 

The  primary  object  of  every  effort  of  remedial  justice  is 
satisfaction  for  the  wrong  committed.  Whenever  a  right  is 
invaded  the  equilibrium  established  by  reason  between  the 
mutually  restrictive  rights  of  the  parties  is  disturbed,  and 
reason  demands  its  restoration  by  placing  the  parties  as 
nearly  as  may  be  possible  in  their  former  condition.  This 
dictate  of  reason  manifests  itself  in  the  most  barbarous  of 
races,  and  even  in  children,  as  that  instinct  of  reprisal  which 
impels  them  as  communities  and  families  and  individuals  to 
preserve  the  balance  of  rights  by  wresting  satisfaction  for  an 
injury  from  the  wrong-doer,  either  in  some  form  of  compensa- 
tion to  the  injured  party  or  in  some  equal  privation  inflicted 
on  the  injurer.  To  attribute  this  instinct  and  its  practical 
expression  to  a  disposition  for  revenge,  as  is  the  custom  with 
such  writers  as  seek  the  origin  of  human  motives  in  the  rude 
passions  of  ancestral  beasts,  is  to  cast  away  the  only  sanction 
which  gives  remedial  justice  its  supreme  authority  over  the 
violators  of  a  legal  right.  Revenge  has  its  root  in  malice, 
is  the  worst  form  of  hatred,  operates  without  reference  to 
reason  and  justice,  exults  in  wrong  committed  not  in  rights 
restored.  The  instinct  of  reprisal,  or  the  lex  talionis,  is 
essentially  reasonable  and  just,  necessary  in  the  present  con- 
dition of  mankind  to  the  prevention  of  wrongs  and  the  preser- 
vatimi  of  rights,  and  therefore  must  express  itself  in  human 
institutions  and  through  human  laws  until  man  passes  into  a 
condition  where  the  disturbance  of  the  equilibrium  of  human 
rights  is  spontaneously  avoided  or  forcibly  restrained. 
Read  Markby.  §§  8-2S-830,  839. 


i  150.    Of  Remedies  which  Place  the  Parties  in  Statu  Quo. 

In  certain  pases  of  violated  legal  rights  the  exact  or  approx- 
imate restoration  of  the  wrong-doer  and  the  injured  party  to 
their  former  condition  is  possible.  Where,  for  example,  the 
owner  of  a  tract  of  land  is  ousted  from  its  possession  by  a 
wrongful  act.  the  ejection  of  the  intruder,  the  delivery  of  pos- 


150  AMERICAN   JURISPRUDENCE.  §  151 

session  to  the  rightful  owner,  the  return  to  him  of  the  inter- 
mediate rents  and  profits,  and  the  payment  of  such  costs  and 
expenses  as  have  accrued  from  his  removal  from  the  land  and 
his  endeavors  to  regain  it,  not  only  deprives  the  wrong-doer  of 
the  advantage  which  his  wrongful  act  conferred  upon  him, 
but  revests  the  owner  of  the  land  with  all  the  legal  privileges 
and  benefits  which  he  could  have  enjoyed  if  his  original  rights 
had  remained  undisturbed.  True  his  wounded  feelings,  his 
loss  of  comfort,  his  anxieties  of  mind,  cannot  be  recalled 
and  prevented,  but  these  are  sufferings  which  have  no  neces- 
sary connection  with  the  invasion  of  his  legal  rights,  are 
largely  due  to  personal  idiosyncrasies,  are  incapable  of  preven- 
tion or  of  adequate  compensation,  and  so  far  as  they  do  result 
from  legal  injuries  are  rarely  and  reluctantly  noticed  by  the 
law.  Other  instances  of  the  return  of  the  parties  to  their 
former  condition  occur  in  the  restoration  of  personal  property 
to  its  owner  with  damages  for  its  detention,  in  the  specific 
performance  of  a  contract,  in  the  induction  of  an  officeholder 
into  an  office  from  which  he  has  been  unlawfully  excluded, 
the  payment  of  an  overdue  debt  with  interest  during  the  time 
of  its  delay,  the  rescission  of  an  agreement  obtained  by  fraud, 
or  the  enforcement  of  the  duties  of  trustees,  (a)  The  ten- 
dency in  all  civilized  States  —  stronger  and  more  successful 
in  proportion  to  their  degree  of  civilization  —  is  to  seek  for 
forms  of  satisfaction  for  completed  wrongs  which  place  the 
parties  in  statu  quo  and  to  devise  methods  for  applying  them, 
and  thus  to  establish  remedial  systems  which,  next  to  such  as 
prevent  wrongs  altogether,  are  the  most  consonant  with  reason 
and  the  most  useful  to  mankind. 

Head  3  Bl.  Com.,  pp.  116,  174-184,  198-207. 

(a)  14  D.  614;   52  D.  777;   27  D.  578;  35  D.  131;  12 
D.  70. 


§  151.    Of  Compensatory  Remedies  for  Public  Wrongs. 

As  yet,  however,  the  vast  majority  of  legal  wrongs  have 
not  been  met  with  remedies  affording  this  exact  or  approxi- 


§  152  REMEDIES.  151 

mate  return  of  the  parties  to  their  previous  condition.  With 
scarcely  an  exception  that  class  of  public  wrongs,  known  as 
crimes,  affords  no  opportunity  for  such  a  remedy.  The  denial 
of  the  authority  of  the  State,  its  insulted  majesty,  the  breach 
of  public  peace  and  order,  the  injury  inflicted  on  it  directly 
or  through  the  persons  of  its  citizens,  cannot  be  obliterated  by 
any  repentance  or  restitution  on  the  part  of  the  wrong-doer. 
A  passive  submission  to  such  wrongs  by  the  State  is  incom- 
patible with  its  political  supremacy;  immunity  to  the  wrong- 
doer is  contrary  to  justice;  and  hence  in  reason  and  in  justice 
it  is  necessary  that  the  State  should  exact  from  the  wrong- 
doer such  reparation  as  shall  be,  as  nearly  as  possible,  the 
equivalent  of  that  obedience  and  respect  to  which  it  was  orig- 
inally entitled.  Defective  as  the  administration  of  criminal 
law  may  now  be  in  our  modern  States,  it  nevertheless  goes 
far  toward  the  attainment  of  this  end.  Corporal  punish- 
ment, imprisonment  and  fines,  inflicted  by  the  State  and 
endured  by  the  offender,  vindicate  its  authority,  repair  the 
insult  to  its  majesty,  manifest  the  supremacy  of  public  order 
over  personal  conduct,  and  assert  the  sacredness  of  the  par- 
ticular rights  which  have  been  violated  by  the  crime.  Better 
methods  than  these  undoubtedly  remain  as  yet  undiscovered, 
more  precisely  adjusting  the  remedy  to  the  reparation  of  the 
wrung,  but  these  disclose  sufficiently  the  principle  which 
underlies  the  punishment  of  crime,  and  truly,  though  perhaps 
inadequately,  embody  its  demands,  (a) 

Read  4  BL  Com.,  pp.  7-10;  Amos,  Ch.  x,  pp.  263-269;  Austin, 
Frag.  pp.  1040-1070. 
(a)  35  St.  706. 


§  152.    Of  Compensatory  Remedies  for  Private  Wrongs. 

In  numerous  instances  qi  private  legal  wrongs  an  equal 
difficulty  exists  in  finding  and  applying  remedies  which  return 
the  parties  to  their  statu  quo.  The  blow,  the  slander,  the 
false  imprisonment,  the  interference  with  family  authority. 
the    destruction    of    property,   cannot    be    recalled,   and    that 


152  AMERICAN   JURISPRUDENCE.  §  152 

condition  of  affairs  be  reproduced  in  which  these  wrongful 
acts  had  not  been  done.  But  some  approach  toward  a  restora- 
tion of  the  equilibrium  of  rights  between  the  parties  can  be 
made  which,  however  slight,  is  more  consonant  to  reason  and 
justice  than  to  leave  the  wrong-doer  triumphant  and  unmo- 
lested in  his  wrong.  Even  if  nothing  more  is  possible  than 
to  subject  him  to  a  privation  equal  to  that  which  he  has  in- 
flicted on  his  victim,  —  "an  eye  for  an  eye,  and  a  tooth  for  a 
tooth,''  —  it  is  better  so  than  that  the  law  should  permit  the 
victim  to  suffer  and  his  injurer  to  go  unscathed.  Kesultless 
in  physical  or  pecuniary  benefit  to  the  injured  party  as  such 
primitive  remedies  as  these  might  be,  still  his  sense  of  justice 
is  satisfied,  the  sanctity  of  his  rights  is  vindicated,  and  the 
wrong-doer  is  provided  with  a  powerful  motive  to  anticipate 
the  action  of  the  law  and  to  compensate  him  for  the  wrongs 
in  methods  more  acceptable  to  both.  ■  And  when,  in  the 
advance  of  society,  property  becomes  if  not  the  most  impor- 
tant yet  the  most  universally  esteemed  of  human  possessions, 
and  money  as  its  representative  the  standard  of  all  values, 
money  may  well  be  taken,  in  default  of  something  higher,  as 
the  equivalent  of  many  rights,  of  all  rights  indeed  whose 
violations  do  not  involve  the  debasement  of  the  intellect 
or  the  defilement  of  the  soul.  As  long  as  men  voluntarily 
hazard  life  and  health  and  reputation  and  liberty  and  family 
rights  for  pay,  as  the  vast  multitude  of  all  mankind  habitu- 
ally do,  there  can  be  no  great  anomaly  in  treating  money 
as  a  sufficient  compensation  for  the  loss  of  these  endowments 
when  the  loss  is  occasioned  by  the  violation  of  their  rights. 
Thus  the  logic  of  events,  which  is  the  law  of  nature,  has 
established,  at  least  until  some  better  satisfaction  is  devised, 
an  award  of  damages  payable  in  money,  and  enforceable 
against  the  person  and  property  of  the  wrong-doer,  as  an  ade- 
quate compensation  for  the  injured  party  for  the  wrong  in- 
flicted by  the  invasion  of  his  private  rights,  and  as  in  effect, 
though  not  in  form,  the  restoration  of  both  parties  to  the 
condition  which  existed  before  the  right  was  violated,  (a) 

Read  Markby,  §  843. 

(a)  27  D.  682,  note;  50  D.  766,  note;  27  ft.  524,  note. 


§§  153,  154  REMEDIES.  153 

§  153.    Of  Preventive  Remedies  for  Public  Wrongs. 

In  addition  to  the  measures  by  which  satisfaction  is 
afforded  for  a  completed  wrong,  States  of  a  higher  civiliza- 
tion have  endeavored  to  create  and  apply  methods  by  which 
the  perpetration  of  the  wrong  itself  could  be  prevented.  In 
the  field  of  public  wrongs,  besides  the  police  restraints  which 
are  intended  to  make  the  commission  of  crime  difficult,  the 
purposes  of  punishment  for  crime  have  been  extended  to  em- 
brace the  reformation  of  the  criminal  and  the  dissuasion  of 
others  from  following  his  example.  Corporal  suffering  has 
been  so  inflicted  as  not  merely  to  satisfy  the  demands  of 
justice  but  to  incapacitate  the  criminal  for  a  repetition  of  the 
offence.  Imprisonment  as  a  simple  penalty  has  been  sur- 
rounded by  such  intellectual  and  moral  influences  as  to  ac- 
quire an  educational  value  in  the  development  of  stronger 
principles  and  nobler  aims.  Such  methods  have  at  present, 
however,  scarcely  passed  beyond  the  region  of  experiment, 
and  apparently  demand  for  their  complete  success  resources 
and  administrative  systems  which  no  State  has  ever  yet 
possessed. 

Read  4  Bl.  Com.,  pp.  251-257;  35  St.  666,  note. 


§  154.    Of  Preventive  Remedies  for  Private  Wrongs. 

Preventive  measures  against  private  wrongs  have  long  been 
an  important  feature  in  the  law  of  remedies.  Introduced  at 
first  to  meet  and  ward  off  a  few  irreparable  injuries,  they  have 
been  gradually  multiplied,  until  they  are  available  in  almost 
any  case  where  justice  would  be  better  served  by  hindering 
the  wrong  than  by  allowing  it  to  be  committed  and  then 
affording  legal  satisfaction,  (a)  These  measures  are  often 
styled  preventive  remedies,  although  a  remedy  contemplates 
the  past  as  a  prevention  does  the  future,  because  they  must  be 
sought  in  the  judicial  tribunals  where  remedies,  properly  so 
called,  are  applied.  Those  recognized  by  our  laws  are  known 
by  the  general  name  of  "injunctions'"  and  are  within  the 
exclusive  jurisdiction  of  the  courts  of  equity.     Resort  to  these 


154  AMERICAN   JURISPRUDENCE.  §  155 

is  no  bar  to  the  simultaneous  prosecution  of   measures    for 
the  satisfaction  of  completed  wrongs. 

Read  Markby,  §§  S31-832. 

(a)  12  D.  550  ;  62  D.  372 ;  69  D.  184. 


§  155.    Of  Existing  Defects  in  the  Application  of  Remedies  to 
Wrongs. 

Obviously,  with  all  the  provision  which  the  law  makes  for 
the  prevention  and  remedy  of  wrongs,  rights  even  in  the 
most  favored  States  are  not  always  perfectly  protected  nor 
wrongs  always  adequately  redressed.  Breaches  of  contract, 
torts,  and  crimes  abound,  and  even  when  the  State  has  ex- 
hausted all  its  legislative  and  judicial  powers  according  to 
the  light  of  the  current  age,  a  vast  residuum  of  wrong  remains 
for  which  no  satisfaction  is  obtainable.  But  this  is  due  not 
to  the  unwisdom  or  injustice  of  the  laws  but  to  those  circum- 
stances of  individual  persons  over  which  the  State  has  no 
control.  Preventive  remedies  are  launched  in  vain  against 
intending  wrong-doers  who  are  alert  enough  to  anticipate  the 
prohibition  of  the  law,  and  satisfaction,  though  awarded  by 
the  courts,  is  fruitlessly  demanded  from  the  insolvent  and 
the  dead.  Nor  can  these  remedies  be  applied  at  all  without 
intricate  legal  machinery  started  and  kept  in  operation  by 
the  injured  party,  moving  with  cautiousness  and  deliberation, 
liable  to  err  but  sedulously  retracing  its  progress  in  order  to 
correct  its  errors,  and  all  this  at  the  expense  of  time  and 
money  to  the  seeker  for  redress,  until  in  multitudes  of  cases 
it  is  evident  that  he  would  suffer  less  by  patiently  acquiescing 
in  the  wrong  than  by  endeavoring  to  obtain  relief.  Great  as 
these  evils  are,  they  are  undoubtedly  destined  to  eventually 
disappear  through  the  gradual  extension  of  the  field  of  pre- 
ventive remedies,  the  simplification  of  legal  procedure,  and 
the  wider  dissemination  among  all  classes  of  citizens  of  their 
knowledge  of  their  legal  rights  and  obligations. 


§§  156,  157       REDRESS  OF  WRONGS  DEFINES  RIGHTS.       155 


SECTION   V. 

OF    THE    LOGICAL    AND    CHRONOLOGICAL    RELATIONS    OF    RIGHTS. 
DUTIES,    WRONGS,    AND    REMEDIES. 

§  156.  Of  the  Logical  Relations  of  Rights,  Duties,  Wrongs, 
and  Remedies. 
A  system  of  laws  promulgated  by  a  lawgiver  of  sufficient 
wisdom  and  illimitable  foresight  would  undoubtedly  com- 
mence with  a  definition  of  rights,  and  thence  proceed  to  pre- 
scribe duties,  thence  to  prohibit  wrongs,  and  finally  to  provide 
legal  remedies.  Such  a  system  would  be  complete  and  logi- 
cal, adapted  not  only  to  the  present  but  to  all  future  ages, 
and  require  only  implicit  obedience  in  order  to  realize  its 
beneficial  results.  In  the  State  which  it  governed  the  legis- 
lative function  would  lie  dormant,  the  judicial  would  be  exer- 
cised merely  in  construing  its  verbal  mandates,  the  executive 
in  carrying  out  its  invariable  decrees.  The  knowledge  of 
the  law  would  resolve  itself  into  a  simple  act  of  memory,  its 
administration  into  a  mechanical  routine.  But  such  a  system. 
of  law  never  has  existed.  Attempts  in  that  direction  have 
been  made  in  modern  as  well  as  ancient  times,  and  still  the 
legal  reformer  dreams  of  codes  and  institutes  which  speak  the 
final  word  of  human  law.  But  the  lawgiver  of  sufficient 
wisdom  and  illimitable  foresight  has  not  yet  appeared  and 
never  will  appear,  and  till  he  comes  mankind  will  wait  in 
vain  for  any  complete  and  logical  and  unmistakable  and 
unamendable  system  of  human  laws. 

§  157.  Of  the  Chronological  Relations  of  Rights,  Duties,  "Wrongs, 
and  Remedies. 
The  origin  and  development  of  our  laws,  as  of  the  laws  of 
all  known  peoples  on  the  earth,  have  been  entirely  different 
from  this.  Political  society  has  first  become  conscious  of 
itself  and  of  its  authority  over  and  its  responsibility  for  its 
members  through  its  contact  with  wrongs.  In  social  condi- 
tions, where  all  rights  are  respected,  rights  require  neith<  c 


156  AMERICAN   JURISPRUDENCE.  8  158 

enumeration  nor  definition,  duties  are  uot  prescribed,  wrongs 
are  not  forbidden  nor  remedies  devised.  It  is  only  when 
some  act  or  omission  coiitrarj'  to  the  innate  sense  of  reason 
and  justice  attracts  the  attention  and  awakes  the  indignation 
of  the  community,  that  the  idea  of  wrong  developes  in  the 
popular  mind  and  urges  the  popular  will  to  exact  a  satisfac- 
tion for  the  injury.  Guided  in  its  first  impulse  by  the  visible 
consequence  of  the  wrong,  it  visits  on  the  guilty  party  an  evil 
measured  by  the  physical  evil  he  inflicts,  demanding  blood 
for  blood  and  life  for  life.  And  here  for  many  ages  the 
development  of  law  may  pause,  the  State  recognizing  no 
wrongs  beyond  the  manifestation  of  physical  violence  to 
person  or  property,  and  meting  out  their  redress  by  the  true 
lex  talionis,  which  is  wise  as  well  as  just.  But  with  the 
advance  of  society  into  higher  and  broader  conditions  this 
narrow  field  of  wrongs  widens  to  take  in  other  injuries  whose 
nature  is  less  evident,  and  for  whose  satisfaction  the  lex 
talionis  cannot  be  applied.  Here  an  investigation  of  the 
character  of  wrongs  as  such,  as  well  as  of  the  differences  be- 
tween them,  must  be  made,  and  this  compels  a  reference  of 
the  wrongful  action  or  omission  to  some  standard  by  which  its 
nature  is  determined  and  the  degree  of  its  enormity  is  ascer- 
tained. As  this  standard  can  be  no  other  than  the  right  in- 
vaded by  the  wrong  the  investigation  of  the  wrong  brings  the 
State  into  contact  with  the  right,  which  it  is  forced  to  analyse, 
define,  and  formulate  as  the  measure  both  of  the  wrong  and 
of  the  satisfaction  it  demands.  And  in  this  process  the  idea 
of  duty  is  evolved  as  the  counterpart  of  the  right  and  the 
antithesis  of  the  wrong,  — the  latest  conception  in  the  actual, 
though  the  second  in  the  logical,  development  of  law. 

Read  Maine,  Early  Law  and  Custom,  pp.  362-392  ;  Amos,  Ch. 
iii,  pp.  29-4G. 


§  158.    Of  Legal  Rights  not  yet  Defined. 

This  partial  and  illogical  evolution  of  the  ideas  of  wrong, 
remedy,  right,  and  duty  which  is  historically  true  of  almost 


§  159         REDRESS    OF    WRONGS    DEFINES    RIGHTS.  157 

every  people,  and  is  particularly  so  of  the  legal  ancestors 
from  whom  we  spring,  accounts  for  many  peculiar  phenomena 
in  our  law.  Among  them  is  the  fact  that  no  complete  enumer- 
ation of  legal  rights  has  ever  been  attempted,  but  only  those 
have  been  defined  which  have  already  been  invaded  by  some 
actually  occurring  legal  wrong.  That  neither  in  our  custom- 
ary nor  our  statute  law  a  conjectural  right  is  hinted  at  is, 
therefore,  no  conclusive  argument  that  it  does  not  exist. 
Until  violated  by  a  wrong  our  legislatures  generally  do  not 
and  our  courts  cannot  recognize  it  or  declare  it,  and  it  may 
thus  reside  in  individuals  and  be  enjoyed  by  them  for  centu- 
ries before  it  falls  within  the  conscious  vision  of  the  law. 
Myriads  of  undefined  and  unasserted  rights  remain  in  this 
condition  to  this  day.  Yet  they  are  not  mere  natural  rights. 
Though  still  in  embryo  they  are  true  legal  rights,  because 
included  in  those  larger  legal  rights  which  have  from  imme- 
morial time  been  stated  and  protected  by  the  law,  and  any 
wrong  specifically  invading  them  would  at  once  evoke  the 
judgment  by  which  their  legal  character  would  be  declared. 
Read  Markby,  §§  193-202. 


§  159.  Of  the  Definition  of  Rights  by  the  Prohibition  of 
"Wrongs. 
Another  fact  arising  from  the  same  conditions  is  that  in 
defining  and  asserting  rights  the  law  does  it  principally  by 
defining  and  forbidding  wrongs.  This  is  equally  true  of  pub- 
lic law  and  of  private  law.  Nearly  the  whole  body  of  our 
criminal  law,  tor  instance,  consists  of  prohibitions;  and  in  no 
branch  of  public  law  outside  of  written  constitutions,  treaties, 
and  charters  is  there  to  be  found  any  considerable  number  of 
affirmative  declarations  of  public  rights.  Legislative  enact- 
ments in  aid  of  private  rights  are  also  usually  directed  against 
the  wrong  by  which  the  right  might  be  invaded,  and  judg- 
ments of  the  courts  sustaining  rights  are  always  in  form  de- 
cisions pointing  out  "and  condemning  actual  or  threatened 
wrongs.      Many  rights  of  property  and   person   have  thus  at 


158  AMERICAN   JURISPRUDENCE.  §  100 

last  attained  a  fulness  of  description  which  permits  them  to 
be  formulated  in  permanent  rujes,  but  a  far  greater  number 
are  still  best  understood  by  examining  the  torts  and  other 
injuries  by  which  they  are  infringed.  What  is  true  of  an- 
tecedent rights  is  true  also  of  remedial.  Although  these  have 
been  formally  conferred  by  law,  yet  they  have  been  developed 
in  detail  by  the  correction  of  errors  in  their  use  rather  than 
by  the  elaboration  of  specific  mandates,  and  the  law  of  plead- 
ing, evidence,  and  procedure  owes  its  perfection  not  to  the 
genius  or  the  foresight  of  the  legislator,  but  to  the  criticism 
of  the  judges  upon  the  mistakes  of  their  predecessors  and 
the  bar. 


§  160.   Of  the  Study  of  Rights  from  the  Standpoint  of  Wrongs. 

The  character  of  our  legal  literature  is  another  consequence 
of  the  chronological  order  in  which  wrongs  and  rights  have 
been  defined.  In  the  earlier  as  well  as  in  the  later  general 
treatises  the  law  of  wrongs  and  remedies  occupies  by  far  the 
greater  portion  of  their  pages,  and  in  some  of  the  oldest, 
which  purport  to  contain  the  whole  body  of  our  then  existing 
law,  little  is  to  be  found  beyond  a  discussion  of  the  unlawful 
actions  and  omissions  by  which  rights  are  invaded  and  the 
forms  of  action  through  which  they  are  redressed.  The 
ancient  student  of  the  law  approached  the  subject  through  the 
avenue  of  remedies  and  wrongs,  not  through  that  of  rights  and 
duties;  and  it  is  still  the  judgment  of  many  eminent  scholars 
that  this  is  the  true  path  to  legal  knowledge.  The  study  of 
law  in  the  decided  cases  is  only  another  method  of  the  same 
species  of  research,  the  investigation  of  rights  and  duties  as 
they  are  brought  into  view  by  the  judicial  definition  and  pun- 
ishment of  wrongs;  and  whatever  success  this  method  of 
investigation  has  attained  is  due  not  to  its  philosophical 
coherence  but  to  its  correspondence  with  the  natural  order  m 
which  the  ideas  of  concrete  wrong  and  remedy  and  abstract 
right  and  duty  have  been  developed  by  experience  in  the 
human  mind. 


§  161         REDRESS    OF    WRONGS    DEFINES    RIGHTS.  159 

§  161.  Of  the  Relation  of  Preventive  Remedies  to  the  Defini- 
tion of  Rights. 
Finally,  the  late  appearance  and  slow  recognition  of  the 
value  of  preventive  remedies  is  due  to  the  same  cause.  The 
visible  consequences  of  a  wrongful  act  suggest  the  character 
and  measure  of  the  restitution  which  justice  does  and  the  law- 
should  require.  Xo  analysis  of  the  wrong  itself  is  necessary 
for  this  purpose,  nor  any  clear  conception  of  the  right  which 
has  been  violated.  But  for  the  application  of  preventive 
remedies  an  adequate  knowledge  of  the  right  to  be  protected 
is  an  essential  prerequisite.  The  modes  in  which  a  right 
can  be  invaded  may  be  numerous,  each  constituting  in  itself  a 
separate  wrong,  and  the  prohibition  of  any  number  of  these 
less  than  the  whole  does  not  afford  protection  to  the  right. 
Yet  not  until  the  right  is  fully  comprehended  can  it  be  known 
by  what  or  by  how  many  varieties  of  wrongful  conduct  it  can 
be  infringed,  nor  till  it  can  be  stated  in  its  correct  and  per- 
fect legal  form  can  corresponding  obligations  to  respect  it  be 
enforced.  The  process  of  accumulating  a  knowledge  of  rights 
through  the  perception  and  redress  of  individual  wrongs  must 
have  been  long  in  operation  before  complete  and  accurate  ideas 
of  rights  could  be  obtained;  and  this  result  must  have  been 
earlier  reached  in  reference  to  some  more  simple  or  more 
frequently  invaded  rights  than  in  reference  to  others.  And 
hence  although  preventive  remedies  are  easier  of  application, 
more  beneficial  to  society,  and  more  consonant  to  reason, 
than  those  which  afford  such  compensation  as  is  possible 
after  the  wrong  has  been  committed,  they  are  even  yet  ex- 
ceptional and  are  only  granted  where  compensatory  remedies 
must  evidently  fail  to  secure  justice  to  the  person  threatened 
with  the  wrong. 


160  AMERICAN   JURISPRUDENCE.  §  162 


CHAPTER   VI. 

OF   THE   DIVISIONS   OF   THE   LAW. 

§  162.    Of  the  Classification  of  the  Rules  of  Law. 

The  development  of  law  through  the  recognition  and  redress 
of  wrongs  produces  in  the  course  of  ages  a  vast  number  of 
specific  rules,  each  formulated  in  connection  with  the  wrong 
which  the  rule  was  intended  to  prevent  or  remedy,  but  never 
a  complete  legal  system  in  which  all  legal  rights  and  duties 
are  asserted  and  all  possible  wrongs  against  them  are  for- 
bidden. Should  such  a  system  ever  appear,  it  would  be  the 
achievement  of  a  State  in  which  this  multitude  of  rules  had 
been  already  promulgated  and  observed  and  by  the  labors  of 
her  legal  scholars  had  been  in  later  generations  compared, 
collated,  harmonized,  and  classified.  Attempts  in  this  direc- 
tion were  made  in  Egypt,  according  to  tradition,  before  the 
era  of  the  Pharaohs,  and  the  laws  of  that  ancient  people  were 
gathered  and  arranged  in  eight  books,  on  which  the  imperial 
sanction  was  bestowed.  The  Civil  Law  of  Rome,  after  twelve 
hundred  years  of  evolution  and  experience,  received  the  same 
systemization  under  the  auspices  of  Theodosius  and  Justinian. 
But  whether  or  not  a  body  of  laws  has  reached  this  stage,  it 
is  evident  that  some  grouping  together  of  its  rules  according 
to  their  natural  affiliations  is  necessary  to  their  profitable 
study,  since  only  thus  can  the  principles  upon  which  they 
are  based  be  understood  and  their  relation  to  the  whole  body 
of  the  law  be  ascertained.  It  has,  therefore,  been  customary, 
even  with  reference  to  laws  so  fragmentary  as  our  own,  to 
relegate  the  specific  rules  to  a  few  general  divisions  or  classes 
of  the  law,  distinguished  one  from  another  by  the  same  char- 
acteristics which  are  followed  in  the  classification  of  rights 
and  wrongs.     These  general  divisions  are:    (1)  Substantive 


§  163  SUBSTANTIVE   AND    ADJECTIVE   LAW.  161 

Law  and  Adjective  Law;  (2)  National  Law  and  International 
Law;  (3)  Private  Law  and  Public  Law;  (4)  Federal  Law  and 
State  Law;   (5)  English  Law  and  American  Law. 


SECTION   I. 

OF    SUBSTANTIVE    LAW    AND    ADJECTIVE    LAW. 

§  163.  Of  the  Distinction  between  Substantive  Law  and  Ad- 
jective Law. 
This  division  rests  upon  the  same  distinction  which  sepa- 
rates antecedent  from  remedial  rights.  Substantive  Law  is 
the  law  governing  antecedent  rights.  Adjective  Law  is  the 
law  regulating  remedial  rights.  As  every  legal  right  is 
either  antecedent  or  remedial,  every  rule  of  law  falls  under 
one  or  the  other  of  these  divisions.  Quite  as  properly,  per- 
haps, these  groups  might  have  been  designated  by  the  same 
names  as  the  rights  which  they  define,  and  have  been  called 
"antecedent  law"  and  "remedial  law,"  but  clearness  and 
convenience  are  subserved  by  giving  them  different  appella- 
tions although  the  meaning  may  be  almost  identical.  A  thing 
is  substantive  when  it  exists  in  and  of  itself  and  for  its  own 
sake;  adjective,  when  it  is  collateral  to  and  dependent  upon 
something  else  for  whose  sake  it  was  created  and  remains  in 
being;  as  in  grammar,  a  substantive  is  a  name  denoting  a 
person  or  thing,  an  adjective  is  the  name  of  a  quality  or 
circumstance  which  attaches  to  or  affects  the  person  or  thing. 
An  antecedent  right  is  substantive;  it  exists  of  itself  and  for 
its  own  sake.  A  remedial  right  is  adjective;  it  depends  upon 
the  antecedent  right  and  is  called  into  being  only  to  protect 
or  vindicate  it.  The  two  members  of  this  division  of  the  law 
thus  take  their  character  from  that  of  the  rights  which  they 
assert,  and  not  from  anything  peculiar  to  the  nature  of  the 
law.  Substantive  Law  comprises  the  whole  body  of  law- 
except  those  which  are  concerned  with  the  administration 
of  remedies;   these  fall  under  the  head  <>t  Adjective  Law.„ 

Read  Holland,  Ch,  vii.  ]>.  7*:    Austin.  Lect.  xlv.  pp.  7<iO-77J. 
11 


162  AMERICAN    JURISPRUDENCE.  §§  164,  165 

§  164.    Of  the  Rules  of  Substantive  Law. 

The  rules  included  under  substantive  law  are  found  in  every 
other  division  into  which  the  rules  of  law  are  grouped.  By 
them  are  defined  and  asserted  the  rights  of  nations  both  in 
peace  and  war,  the  rights  of  States  and  citizens  against  each 
other,  the  rights  of  citizens  among  themselves.  The  law  of  tort 
and  contract,  of  property  and  crimes,  of  natural  and  artificial 
persons,  of  family  and  fiduciary  relations,  the  law  expressed 
in  constitutions  and  treaties,  the  binding  usages  and  customs 
of  the  maritime  and  mercantile  world,  are  all  alike  concerned 
with  antecedent  rights  and  form  some  portion  of  substantive 
law.  The  impossibility  of  gathering  all  these  rules  together 
and  discussing  them  in  a  continuous  treatise  must  always 
render  this  division  of  law  into  substantive  and  adjective 
of  less  practical  importance  than  the  other  divisions  hereafter 
to  be  mentioned,  though  to  the  jurist,  investigating  the  inhe- 
rent justice,  permanency,  and  value  of  the  rules  of  law,  sub- 
stantive law,  which  is  the  direct  expression  of  the  law  of 
nature,  must  ever  be  superior  to  adjective  law,  which  is  the 
offspring  of  emergencies  and  is  necessarily  imperfect  and 
ephemeral. 


§  165.    Of  the  Rules  of  Adjective  Law. 

Adjective  law  also  comprises  rules  which  are  found  in  both 
members  of  every  other  classification  of  the  law.  Substantive 
law  is  always  liable  to  disobedience  and  none  of  its  provisions 
is  beyond  the  possibility  of  invasion  by  a  wrong.  Answering 
to  the  right  and  awaiting  its  violation,  therefore,  ever  present 
is  the  remedy,  between  nations,  between  States  and  citizens, 
between  individuals.  The  laws  of  war,  the  law  of  criminal 
procedure,  the  law  of  private  actions  and  defences,  accompany 
with  equal  step  the  law  which  asserts  the  antecedent  rights 
of  independent  sovereignty,  of  constitutional  supremacy,  of 
personal  security  and  liberty,  of  property  and  domestic  peace. 
But  though  the  adjective  law  is  thus  no  less  ubiquitous  than 
substantive  law,  the  variety  and  number  of  the  rules  which 
it  includes  are  comparatively  limited.     Those  which  govern 


§  166  NATIONAL    AND    INTERNATIONAL    LAW.  163 

hostile  nations  in  their  movements  of  aggression  and  defence, 
the  rules  of  courts,  of  civil  and  criminal  proceedings,  of  plead- 
ing, evidence,  and  damages,  of  preventive  and  extraordinary 
remedies,  occupy  the  entire  field  of  adjective  law  and  could 
be  sufficiently  expounded  in  a  few  volumes  of  very  moderate 
dimensions. 

Read  Holland,  Ch.  xv,  pp.  314-320. 


SECTION    II. 

OF    NATIONAL    LAW    AND    INTERNATIONAL    LAW. 

§  166.    Of  the  Source  of  National  Law. 

National  or  Municipal  Law  is  that  body  of  rules  by  which  a 
State  asserts  and  protects  its  own  rigfits  against  its  citizens 
and  their  rights  against  it  and  against  one  another.  Inter- 
national Law  is  that  body  of  rules  which  regulates  the  inter- 
course of  independent  nations.  In  these  two  classes  also  all 
law  is  comprised.  Both  contain  provisions  of  adjective  as 
well  as  substantive  law.  National  Law  emanates  from  the 
supreme  authority  in  the  State  for  which  it  is  prescribed,  not 
necessarily  from  the  legislative  body  technically  so  called,  but 
from  any  person  or  group  of  persons  exercising  the  law- 
making and  defining  power.  A  rule  of  law  formulated  for  the 
first  time  by  a  court  acting  within  its  lawful  jurisdiction  is, 
as  to  the  controversy  which  it  governs,  the  product  of  legisla- 
tive authority  as  truly  as  though  enacted  in  the  form  of  a 
statute,  and  if  accepted  and  followed  by  other  courts,  becomes 
at  last  a  part  of  the  universal  as  well  as  of  the  supreme  law 
of  the  land.  It  is  for  every  State  to  determine  where  such 
authority  shall  be  Lodged  and  how  it  shall  be  exerted,  and 
it  may  and  often  does  confer  it  upon  individuals  or  commu- 
nities whose  legislative  action  is  thereby  made  as  binding 
as  its  own.  In  the  very  nature  of  things,  the  law-making 
power  is  the  supreme  power  in  the  State,  and  by  whomsoever 
laws  enn  lawfully  be  made,  in  him  or  them,  so  far  as  the  per- 


104  AMERICAN   JURISPRUDENCE.  §   167 

sons  subject  to  such   laws  are  concerned,  does  sovereignty 

reside,  (a) 

Read  1  Bl.  Com.,  pp.  44-46. 

(a)  37  D.  52  (55-57)  ;  27  St.  106  (113,  114). 


§  167.    Of  the  Authority  of  National  Law  over  the  State. 

National  law  imposes  obligations  on  the  State  as  well  as  on 
the  citizen.  The  theory  that  the  State  is  impersonal  and  con- 
sequently has  no  legal  rights  or  duties  is  not  recognized  in 
our  law.  The  State  is  a  political  community  composed  of 
citizens  acting  through  their  representatives  lor  their  mutual 
advancement  and  protection,  and  whether  contemplated  as  the 
entire  community  or  as  the  group  of  representatives  by  whom 
the  power  of  the  community  is  wielded,  the  purposes  for 
which  the  community  exists  and  its  powers  are  exercised  re- 
strict the  right  of  the  State  to  act  and  to  forbear  within  the 
compass  of.  those  measures  which  are  conducive  to  the  common 
good,  (a)  This  restrictive  law  is  not  imposed  upon  the  State 
from  without,  nor  by  the  State  itself  after  it  formally  becomes 
a  State,  but  is  established  and  is  made  effective  by  the  very 
act  of  the  community  in  assuming  political  authority  and 
asserting  for  itself  the  sovereignty  which  is  the  essential  attri- 
bute of  a  State,  (b)  Not  that  any  compact  between  the  mem- 
bers of  the  community  need  have  been  made,  nor  any  date  be 
ascertainable  when  the  community  became  a  State;  the  fact 
that  it  now  claims  and  exercises  sovereignty  is,  in  our  theories, 
a  sufficient  proof  that  it  received  its  sovereignty  in  trust  for 
the  people  over  whom  it  rules  and  must  exert  its  powers  solely 
for  their  individual  and  collective  benefit,  (c)  Whether  the 
State  then  be  regarded  as  a  determinate  or  an  indeterminate 
person  it  owes  duties  and  possesses  rights,  the  general  char- 
acter of  which  is  fixed  by  the  purposes  for  which  the  State 
exists,  while  their  specific  elements  and  obligations  are  left 
to  be  enumerated  in  the  laws  which,  as  at  once  preserving  and 
applying  its  governmental  powers  for  the  benefit  of  its  people, 
the  State  from  time  to  time  adopts.  Thus  the  State  neces- 
sarily embraces  in  its  national  law  the  definition  and  assertion 


§§  1G8,  169      NATIONAL   AND    INTERNATIONAL   LAW.       IGo 

of  its  own  rights  and  obligations  as  well  as  those  of  its  citi- 
zens,-and  equally  with  them  regards  itself  as  bound  by  its 
own  laws. 

Read  Dillon,  Lect.  viii,  pp.  224-228. 

(a)  15  St.  400  (40:3-405);  16  St.  813  (815);  20  D.  360 

(372-374)  :  79  D.  236. 

(b)  35  D.  320;  95  D.  350. 
(V)  79  D.  123  (131,  132). 


§  168.    Of  the  Authoiity  of  National  Law  over  the  Citizen. 

The  obligations  imposed  by  national  law  upon  the  citizens 
of  the  State  extend  to  all  their  intercourse  and  relations  with 
the  State  and  with  one  another.  It  also  reaches  to  their  acts 
and  forbearances  in  reference  to  other  States  so  far  as  these 
may  involve  the  amicable  or  hostile  attitude  which  they  may 
occupy  toward  his  own  State.  In  time  of  war  many  acts 
otherwise  lawful  and  perhaps  commendable  assume  a  treason- 
able character  when  the  actor  is  a  subject  of  either  of  the 
combatants,  and  are  still  crimes,  though  lesser  ones,  when  he 
is  the  subject  of  a  neutral  State.  In  time  of  peace  seditions 
and  conspiracies  conducted  in  his  own  country  against  a 
foreign  State  are  breaches  of  international  comity  and  may  be 
prohibited  and  punished  by  the  State  where  they  occur.  Thus 
the  field  of  national  law  embraces  all  the  rights  and  duties 
of  private  persons  and  all  the  rights  and  obligations  of  public 
persona  except  those  which  one  State  may  possess  against 
another. 

Read   1   Whart.   I.  L.  Dig.  §§  18-21;    2  Whart.  I.  L.   Dig. 
§§  268-282. 

§  169.  Of  the  Authority  of  Two  or  more  National  Laws  in 
the  Same  State. 
In  States  composed  of  minor  States  confederated  together 
in  a  common  nation,  of  which  the  United  States  is  an  exam- 
ple, the  nation  and  each  different  State  may  have  its  own 
peculiar  national  law.  To  render  this  possible,  the  field  of 
national  law  must  be  divided,  certain  matters  being  subject  to 


.160  AMERICAN    JURISPRUDENCE.         §§  170,  171 

the  jurisdiction  of  the  nation  and  to  be  governed  by  its  law, 
others  being  placed  within  the  jurisdiction  of  the  individual 
States  to  be  regulated  by  their  respective  laws.  Within  the 
topical  jurisdiction  of  each  one  of  these  sovereignties  its  law 
is  supreme,  and  the  citizen  is  directed  in  his  conduct  by  one 
law  or  the  other,  according  to  the  nature  of  his  act  or  the 
object  to  which  it  relates.  As  against  one  another  these 
minor  States  may  be  independent  sovereignties,  the  common 
national  law  by  which  they  are  controlled  in  their  reciprocal 
relations  discharging  as  to  them  the  functions  of  an  inter- 
national law,  though  as  to  the  nation  to  which  they  alike 
belong  it  is  still  a  national  law. 


§  170.    Of  the  Territorial  Jurisdiction  of  National  Law. 

National  law  has  no  force  beyond  the  territory  of  the  sover- 
eign by  whom  it.  is  prescribed,  (a)  Over  the  country  which 
he  governs  and  over  other  places  which  the  law  presumes  to 
be  part  of  his  territory,  such  as  the  vessels  which  sail  under 
his  flag,  and  no  farther,  its  authority  extends,  (b)  In  other 
States  its  rules  may  be  noticed  and  obeyed,  as  an  act  of  inter- 
national comity,  in  reference  to  controversies  which  for  any 
reason  ought  to  be  governed  by  its  laws  rather  than  by  the 
laws  of  the  State  where  they  arise;  but  even  this  courtesy  is 
optional  with  the  latter  State,  though  now  so  customary  that 
it  can  scarcely  be  refused.  Between  the  different  States  of 
our  own  Union  this  recognition  is  obligatory  under  the  provi- 
sions of  the  Federal  Constitution. 

Read  1  Kent,  Lect.  ii,  pp.  21-23,  29-31;  Story,  Conf.  L.  §§  18- 
22  ;  1  Whart.  I.  L.  Dig.  §§  1,  9,  26-33. 

(a)  54  D.  630;  79  D.  440;  21  D.  89;  16  Pet.  367;  25  D. 

745;  36  D.  458. 

(b)  32  D.  114;  43  D.  180;  74  D.  703;  7  Cranch,  116. 


§  171.    Of  International  Law. 

international  Law  is  that  body  of  rules  which  defines  and 
protects  the  rights  of  independent  States  as  against  one  an- 


§  171  NATIONAL   AND    INTERNATIONAL   LAW.  1G7 

other.  Although  not  law  in  the  sense  that  it  is  formally  pre- 
scribed by  any  political  superior  to  whom  the  States  bound 
by  the  law  are  subject,  yet  in  the  sense  that  it  is  a  rule  impos- 
ing duties  and  obligations  which  the  .States  in  their  political 
character  are  bound  to  observe,  and  will  unite  to  enforce,  it 
is  law  by  which  certain  legal  rights  are  asserted  and  wrongs 
against  those  rights  are  redressed.  As  such  it  is  based  upon 
the  law  of  nature,  and  is  therefore  referable  to  the  eternal  law. 
For  it  is  manifest  that  all  mankind  cannot  now  be  grouped 
together 'into  one  State,  and  consequently  that  for  their  social 
preservation  and  development  many  States  must  exist;  that 
these  States  must  have  some  reciprocal  relations  and  conse- 
quently  some  intercourse  with  one  another;  that  national  in- 
tercourse cannot  peacefully  subsist  without  some  norm  or 
rule  of  national  action  and  forbearance  recognized  by  the  re- 
lated nations  and  on  which  each  can  rely  in  determining  its 
own  acts  and  omissions.  And  as  this  distribution  of  man- 
kind into  many  nations,  this  necessity  for  mutual  intercourse, 
and  this  impossibility  of  continued  peaceful  intercourse  with- 
out law  are  all  facts  resulting  from  the  operation  of  the 
natural  law,  the  law  which  governs  international  intercourse 
is  the  legitimate  and  inevitable  offspring  of  the  law  of 
nature  and  receives  from  it  a  sanction  and  authority  co- 
extensive with  the  power  which  the  promotion  of  good  order 
among  nations  compels  it  to  exert.  It  is  true  that  all  actual 
power  over  independent  States  resides  in  the  community  of 
States  to  which  these  independent  States  belong,  and  thus  the 
governing  body  and  the  governed  appeal  to  be  the  same. 
But  this  is  equally  true  of  individual  States  considered  with 
reference  to  their  own  subjects.  The  State  is  ruled  by  its 
own  laws  in  pursuance  oi  the  obligations  assumed  by  it  in 
becoming  a  political  Bociety  ami  charging  itself  with  the  pro- 
tection ami  advancement  of  its  citizens.  By  the  same  act  of 
becoming  a  State  and  entering  into  the  family  of  nations, 
every  State  submits  itself  to  the  rules  dictated  by  the  natural 
law  concerning  the  mutual  intercourse  of  States  and  under- 
takes to  co-operate  with  other  States  in  the  enforcement  of 
these  rules.     The  right  of  one  State  to  set  at  defiance  all  obli- 


168  AMERICAN    JURISPRUDENCE.  §  172 

gations  of  justice  and  reason  toward  other  States  has  never 
been  admitted  for  a  moment  as  a  practical  doctrine  for  the 
guidance  of  international  relations,  and  if  some  States  have 
acted  in  this  manner  it  has  been  tolerated  only  because  the 
other  members  of  the  family  of  nations  were  too  weak  to  in- 
terfere. The  independence  of  a  State  consists  in  its  right  to 
exercise  unrestricted  political  sovereignty  over  its  own  people, 
not  in  its  right  to  disregard  its  national  obligations  toward 
other  States,  and  whatever  may  be  our  theory  concerning  the 
presence  or  absence  of  any  visible  political  sanction  for  the 
law  of  nations,  the  transgression  of  any  State  against  its 
rules  is  liable  to  meet  with  an  indignant  protest  from  the 
other  States,  the  disregard  of  which  is  a  sufficient  provoca- 
tion for  immediate  war. 

Read  Wilson,  Part  i,  Ch.  iv  ;  Walker,  Lect.  xli ;  Amos,  Ch.  xii, 
pp.  322-359.   - 


§  172.    Of  the  Origin  and  Development  of  International  Law. 

The  rules  of  international  law  first  appear  as  usages  or 
customs  which,  in  obedience  to  their  innate  instincts  of  jus- 
tice and  utility,  the  nations  have  followed  in  their  intercourse 
with  one  another.  As  time  and  experience  have  ratified  the 
dictates  of  these  instincts  and  proved  the  wisdom  of  these 
usages,  the  rules  which  they  have  practically  applied  have 
come  to  be  regarded  as  inviolable,  and  when  disputed  by  one 
State  have  been  affirmed  by  the  united  judgment  of  the  rest. 
In  such  affirmations  and  by  other  methods  recognition  has 
been  given  by  the  family  of  nations  to  one  after  another  of 
these  customs,  the  rules  which  they  embody  have  been  clearly 
expressed,  and  in  determining  subsequent  controversies  in 
reference  to  them  they  have  been  copiously  illustrated  and 
explained.  In  this  manner  international  law,  without  any 
formal  enactment  or  promulgation,  has  gradually  assumed  the 
character  of  a  fixed  body  of  law,  with  its  appropriate  sub- 
divisions,  which    is    now    amply    set   forth  in  the  works  of 


§  173  NATIONAL   AND    INTERNATIONAL   LAW.  169 

learned  jurists,  the  decisions  of  courts,  the  treaties  between 
States,  and  the  awards  of  international  arbitrations,  (a) 

Read  Vattel,  Preface,  pp.  vii-xvii,  Prelim.,  §§  1-28;  1  Kent, 
Lect.  i,  pp.  1-20,  Lect.  iii,  pp.  69-71. 
(a)  175  U.  S.  677. 


§  173.    Of  the  Territorial  Jurisdiction  of  International  Law. 

International  law  applies  only  to  States  and  to  those  States 
which  have  a  place  among  the  family  of  nations.  Not  every 
political  society  is  a  State  and  not  every  State  is  necessarily 
a  member  of  the  family  of  nations.  Any  association  of  per- 
sons not  already  subjects  of  a  State,  who  are  organized  for  the 
purpose  of  protecting  their  common  and  individual  rights  of 
security,  liberty,  and  property  by  the  enactment  and  enforce- 
ment of  certain  laws,  is  a  political  society;  but  such  a  society 
is  not  a  State  unless  endowed  with  complete  sovereignty  over 
its  members,  although  it  does  possess  political  and  legal  in- 
stitutions and  exercises  its  authority  through  an  established 
form  of  government.  A  sovereign  State,  having  unlimited 
dominion  over  its  own  people,  may  never  have  been  recog- 
nized by  other  nations  as  an  independent  State,  either  be- 
cause of  its  recent  origin,  its  precarious  existence,  its  attitude 
toward  one  or  more  of  their  own  number,  or  the  intrinsic 
antagonism  between  its  political  purposes  or  theories  and 
theirs;  and  so  it  may  remain  outside  the  family  of  nations 
until  they  see  fit  to  admit  it.  Until  our  own  historic  period 
this  family  embraced  only  the  so-called  Christian  nations, 
but  is  now  gradually  extending  to  include  all  independent 
States  with  whom  commercial  interests  require  that  inter- 
national relations  shall  be  maintained.  On  all  the  States 
within  this  family  international  law  is  binding.  All  have 
adopted  it  as  a  part  of  their  own  national  law  so  far  as  it 
imposes  obligations  on  their  private  citizens,  and  cannot  alter 
it  by  any  legislative  action  nor  depart  from  it  in  a  decision  of 
their  courts. 

Read  Holland,  Ch.  xvii.  pp  343-848,  Ch.  xviii.  pp.  378,379; 
1  Whart.  1.  L    Dig.  §  8. 


170  AMERICAN   JURISPRUDENCE.  §§  174,  175 

§  174.    Of  the  Topical  Jurisdiction  of  International  Law. 

International  law  decides  all  questions  between  independent 
States  so  far  as  its  own  doctrines  and  rules  have  been  devel- 
oped. New  rules  and  doctrines  can  arise  only  by  custom  or 
common  consent,  and  outside  the  limits  to  which  usage  and 
compact  have  already  brought  the  law  nations  must  determine 
their  controversies  by  concession,  by  arbitration,  or  by  war. 
The  principles  of  reason,  justice,  and  equity  which  it  applies 
to  States  are 'the  same  which  national  law  applies  to  individ- 
uals. The  subjects  which  it  has  thus  far  brought  within  its 
control  are  chiefly  these:  the  right  of  a  political,  society  to 
be  a  State  and  a  member  of  the  family  of  nations;  the  right 
of  a  State  to  its  national  honor  and  reputation ;  the  jurisdic- 
tion of  States  over  property  beyond  their  own  borders;  the 
immunities  of  subjects;  the  exercise  of  treaty  powers;  the 
modes  of  civilized  warfare;  and  the  status,  rights,  and  obli- 
gations of  belligerents  and  neutrals. 

Read  Holland,  Ch.  xvii,  pp.  348-357;  Woolsey,  §§  222-231. 


SECTION   III. 

OF    PRIVATE    LAW    AND    PUBLIC    LAW. 

§  175.    Of  the  Distinction  between  Private  Law  and  Public  Law. 

The  division  of  law  into  Private  Law  and  Public  Law  is 
one  of  the  most  ancient  modes  of  classifying  law  and  is 
based  upon  the  distinction  between  private  and  public  rights. 
Private  rights  are  defined  and  enforced  by  Private  Law ;  public 
rights  by  Public  Law.  All  bodies  of  law  fall  under  one  or 
the  other  of  these  divisions,  though  some  writers  exclude  in- 
ternational law  from  both,  and  divide  the  law  into  three 
classes, — private,  public,  and  international, — not  because 
the  rights  governed  by  international  law  are  neither  public  nor 
private,  but  because  they  do  not  regard  international  law  as 
law  at  all  in  the  same  sense  that  national  law  is  law,  to  which 
they  confine  the  distinction  between  Public  and  Private  Law. 
Whatever  may  be  the    correctness  of   their  claim  as  to  the 


§§  17G,  177         PRIVATE    AND    PUBLIC    LAW.  171 

character  of  international  law  as  law,  their  threefold  division 
of  the  law  is  incorrect,  since  the  principle  of  differentiation 
which  separates  Public  Law  from  Private  Law  is  not  the  same 
as  that  which  distinguishes  international  law  from  law  truly 
so  called.  Law  of  every  kind  is  wholly  occupied  with  rights, 
anil  every  right  is  either  public  or  private,  and  consequently 
every  rule  of  law  is  a  rule  of  Public  Law  or  a  rule  of  Private 
Law. 

Read  Markby,  §§  291-295;  Austin,  Lect.  xliv,  pp.  744-759. 

§  176.    Of  the  Divisions  of  Private  Law. 

Private  law  is  divisible  into:  (1)  The  law  of  Personal 
Rights;  (2)  The  law  of  Family  Rights;  (3)  The  law  of  Prop- 
erty Eights;  (-4)  The  law  of  Private  Wrongs;  (5)  The  law  of 
Private  Remedies.  The  first  four  of  these  are  branches  of 
substantive  law;  the  last  is  adjective  law.  The  law  of  Per- 
sonal Rights  comprises  the  rules  deiining  and  asserting  the 
rights  of  personal  security  and  liberty.  The  law  of  Family 
Rights  embraces  the  rules  governing  those  rights  both  in  rein 
and  in  personam  which  arise  out  of  the  domestic  relations. 
The  law  of  Property  Rights  includes  all  legal  provisions  re- 
lating to  the  acquisition,  ownership,  possession,  and  transfer 
of  any  species  of  property,  corporeal  or  incorporeal.  The  law 
of  Private  Wrongs  covers  every  violation  of  private  rights, 
whether  by  breaches  of  contracts,  or  by  tortious  acts,  or  by 
tortious  forbearances.  The  law  of  Private  Remedies  directs 
all  methods  by  which  the  law  endeavors  to  prevent  or  to  afford 
redress  for  private  wrongs.  These  divisions  of  Private  Law- 
farther  divide  and  sub-divide  into  many  branches  as  the 
details  of  the  rights  or  wrongs  or  remedies  to  which  they 
pertain  are  subjected  to  a  more  minute  examination. 
Head  Markby,  §§  296-3n»;. 


§  177.    Of  the   Relation  of  Private  Law  to  National   Law  and 
International  Law. 
Private  Law  is  always  national  law.      Certain  priviL 
which    private   citizens    possess   to  avail   themselves  in  one 


172  AMERICAN    JURISPRUDENCE.  §  178 

State  of  the  laws  of  another  State  in  reference  to  their  per- 
sonal status,  or  their  contracts  or  other  property,  have  been 
sometimes  grouped  under  the  name  of  Private  International 
Rights,  and  the  rules  which  govern  them  have  correspond- 
ingly been  called  Private  International  Law.  But  this  is  so 
violent  a  misuse  of  the  term  "international"  as  to  have 
merited  and  received  the  severest  criticism.  The  comity 
which  permits  the  enjoyment  of  such  privileges  may  be 
within  the  sphere  of  international  law,  but  the  comity  is 
public  between  State  and  State  and  not  between  the  State  and 
any  private  foreign  citizen,  and  that  he  receives  the  privilege 
is  not  the  consequence  of  any  private  right  which  he  possesses 
against  either  State,  but  of  the  international  relations  which 
the  States  have  assumed  toward  each  other.  The  law  which 
recognizes  and  directs  the  mode  in  which  the  privilege  may 
be  made  available  is  a  portion  of  the  private  national  law, 
belonging  partly  to  the  laws  of  personal,  family,  and  property 
rights,  and  partly  to  the  law  of  remedies,  and  when  discussed 
as  a  separate  subject  is  usually  treated  under  the  title  of 
"Couflict  of  Laws,"  or  perhaps  more  properly  the  "Jurisdic- 
tion of  Laws.  ' 


§  178.    Of  the  Divisions  of  Public  Law. 

Public  Law  is  divisible  into:   (1)  International  Law;  (2) 
/Constitutional  Law;   (3)  Administrative  Law;  (4)  The  Law 
/of   Public  Wrongs;   (5)  The  Law  of  Public  Remedies.     In- 
,'  ternational  Law  is  the  law  which  defines  the  mutual  rights 
of  independent  States.     Constitutional  Law  asserts  the  duties 
of  the  State  toward  itself  and  its  own  citizens  and  the  ob- 
ligations   toward    it  which  are  imposed   upon    its    members. 
Administrative    Law   regulates     the    various    governmental 
operations  of  the  State.    The  Law  of  Public  Wrongs  prohibits 
specified  actions  and  omissions  as  violations  of  public  rights. 
The  Law  of  Public  Remedies  controls  the  measures  adopted 
by  the  State  for  the  prevention,  punishment,  or  rectification 
of  public  wrongs.     International  Law  and  Constitutional  Law 
are  generally  treated  by  jurists  as  single  departments  of  the 


§  179  FEDERAL   AND    STATE   LAW.  173 

law,  although  each  is  divisible  according  to  the  subjects  which 
it  includes.  Administrative  Law  comprises  Parliamentary 
Law,  or  the  rules  which  govern  the  proceedings  of  legislative 
assemblies;  Revenue  Law,  or  the  rules  which  provide  for  the 
financial  support  of  the  State  by  its  citizens;  Ecclesiastical 
Law,  or  the  rules  which  fix  the  relations  between  the  State 
and  religious  bodies,  and  where  there  is  an  established  church 
control  also  its  internal  affairs;  Military  Law,  or  the  rules 
which  regulate  the  military  and  naval  forces  of  the  State; 
Martial  Law,  or  the  rules  framed  by  a  military  commander 
occupying  hostile  or  insurgent  territory  for  the  government  of 
the  inhabitants  of  that  territory  when  the  ordinary  laws  are 
set  aside  by  violence  and  the  usual  course  of  justice  is  im- 
peded; and  whatever  other  laws,  such  as  police  laws,  poor 
laws,  labor  laws,  postal  laws,  banking  laws,  and  school  laws, 
the  economic,  sanitary,  or  commercial  condition  of  the  State 
may  demand.  The  Law  of  Public  Wrongs  embraces  Criminal 
Law,  and  also  such  special  prohibitions  as  the  State  directs 
against  actions  and  omissions  which,  though  not  possessing 
the  essential  elements  of  crime,  are  prejudicial  to  the  common- 
wealth. The  Law  of  Public  Remedies  includes  Criminal 
Procedure  and  whatever  other  measures  the  State  employs  to 
ward  off  or  redress  a  public  wrong. 

Read  Holland,  Ch.  xvi,  pp.  321-340. 


SECTION   IV. 

OF    FEDERAL    LAW    AND    STATE    LAW. 

§  179.  Of  the  Distinction  between  Federal  Law  and  State  Law. 
The  three  foregoing  divisions  pertain  to  all  law;  the  two 
following  to  the  law  as  it  now  exists  and  is  administered  in 
the  United  States.  Of  these  two  the  first  is  the  division 
between  State  Law  and  Federal  Law.  State  Law,  as  the 
phrase  is  here  employed,  signifies  the  local  law  in  force  in 
the  several  States  of  the  American  Union.  Federal  Law  is  the 
general  law  of  the  United  States  considered  as  a  nation,  and 


174  AMERICAN    JURISPRUDENCE.  §  180 

Is  m  force  wherever  that  national  authority  extends.  State 
Law  emanates  from  the  supreme  power  in  each  State,  governs 
only  that  State  and  its  citizens  and  the  persons  and  property 
within  its  borders,  and  governs  these  only  with  reference  to 
matters  which  are  not  of  a  national  but  of  a  purely  local 
character.  Federal  Law  emanates  from  Congress  and  from 
other  official  bodies  or  persons  exercising  the  legislative 
authority  of  the  United  States,  and' governs  the  United  States 
and  every  State,  and  all  the  people  and  property  within  the 
territory  of  the  United  States,  in  reference  to  matters  of  a 
national  character.  Thus  within  every  State  of  the  American 
Union  there  exist  two  distinct  systems  of  law,  differing  from 
each  other  in  the  sovereignty  by  which  they  are  prescribed 
and  in  the  subjects-matter  to  which  they  relate,  but  each  of 
paramount  authority  within  the  sphere  to  which  it  is 
confined. 

Read  Dillon,  Lect.  viii,  pp.  216-223;  Cooley,  C.  Law,  Ch.  ii, 
pp.  33-35,  Ch.  vi,  pp.  152-155,  157-159;  Walker,  Lect. 
v,  ix,  x. 


§  180.  Of  the  Territorial  Jurisdiction  of  Federal  Law  and 
State  Law. 
Included  within  the  territory  of  the  United  States  are  the 
fully  organized  States  of  the  Union,  the  organized  Territories, 
the  District  of  Columbia,  and  other  countries  and  populations 
not  yet  having  a  separate  organic  political  existence.  With 
the  exception  of  the  District  of  Columbia  and  the  organized 
States  all  these  are  States  in  their  formative  period;  some, 
like  the  organized  Territories,  approximating  statehood; 
others  just  emerging  from  barbaric  disorder  into  civilized 
life.  The  District  of  Columbia  and  the  unorganized  territory 
have  no  local  law,  but  are  governed  entirely  by  the  provi- 
sions of  the  Federal  Law.  The  organized  Territories  possess 
local  legal  systems  more  or  less  elaborate,  but  these  are 
dependent  for  their  authority  and  sanction  on  the  Federal 
Government,  and  though  they  resemble  State  Law  in  the  fact 
of   their  local  application,  yet,   in  view  of  the  source  from 


§  181  FEDERAL   AND    STATE    LAW.  175 

which  they  are  ultimatel}"  derived  and  the  power  by  which 
they  are  enforced,  they  belong  properly  to  Federal  Law.  (u) 

Read  Cooley,  C.  Law,  Ch.  ii,  pp.  37,  38,  Ch.  viii.  pp.  182-186; 
1  Whart.  I.  L.  Dig.  §§  2,  3. 
(a)  158  U.  S.  564;  101  U.  S.  120;    19  How.  393  (446- 
450);  1  Pet.  511. 


§  181.  Of  the  Topical  Jurisdiction  of  Federal  Law  and  State 
Law. 
The  distinction  between  State  and  Federal  law  thus  exists  in 
its  completeness  only  in  reference  to  the  fully  organized  and 
duly  admitted  States  of  the  American  Union,  and  in  these 
this  distinction  is  based  on  the  subjects-matter  over  which 
the  sovereignties  of  the  United  States  and  of  the  individual 
States  respectively  exercise  jurisdiction.  The  authority  of 
the  United  States  extends  to  all  subjects  of  a  national  char- 
acter, of  the  individual  States  to  all  subjects  not  of  a  national 
character.  This  line  of  demarcation,  so  easily  expressed  in 
words,  is  in  its  practical  application  of  constantly  increasing 
difficulty.  That  all  matters  pertaining  to  the  relations  of  the 
United  States  to  other  nations  or  to  the  mutual  relations  of 
the  States  of  the  Federal  Union,  and  all  matters  placed  within 
the  exclusive  control  of  the  United  States  by  the  express 
language  of  the  Federal  Constitution  or  its  necessary  impli- 
cations, are  of  a  national  character  admits  of  no  question.  (<t) 
That  the  mode  in  which  an  individual  State  shall  discharge 
its  legitimate  legislative,  judicial,  and  executive  functions, 
the  measures  it  adopts  for  the  protection  of  the  security  and 
liberty  of  its  own  citizens,  the  rules  which  govern  the  acqui- 
sition and  transfer  of  property,  especially  of  real  property, 
and  the  wrongs  of  which  it  will  take  notice  as  offences  against 
itself,  together  with  the  punishment  which  it  will  inflict  for 
them,  are  matters  not  of  a  national  character  is  equally  evi- 
dent, (b)  But  between  the  matters  so  clearly  separated  from 
one  another  there  is  a  wide  field  of  rights  and  duties  not 
strictly  national  in  their  intrinsic  character  and  yet  of  such 
grave  and  universal  importance  to  the  whole  people  of  the 


176  AMERICAN   JURISPRUDENCE.  §  182 

United  States  as  to  be  national  in  the  effects  which  any  law 
or  decision  concerning  them  may  produce.  Into  this  field, 
formerly  regarded  as  within  State  authority  alone,  the  law  of 
the  United  States  in  pursuance  of  most  liberal  interpretations 
of  the  Federal  Constitution  is  gradually  extending,  and  with 
the  increasing  intimacy  of  commercial  and  community  rela- 
tions between  our  people,  and  the  consequent  homogeneity  of 
political  ideas  and  institutions  irrespective  of  State  lines, 
must  continue  to  extend  until  every  interest  which  is  common 
or  identical  to  all  the  inhabitants  of  the  United  States  shall 
be  governed  by  one  uniform  law,  which  can  be  no  other  than 
a  Federal  law.  (c)  How  much  of  State  Law  will  remain,  out- 
side of  its  internal  political  regulations,  after  this  period  of 
our  legal  development  is  reached  it  is  idle  to  conjecture.  It 
is  of  less  moment  to  the  citizen  from  what  authority  the  laws 
which  govern  him  proceed  than  that  such  laws  be  permanent, 
consistent,  wise,  and  just. 

Read  Cooley,  C.  Law,  Ch.  iv.  pp.  66-83,  Ch.  ix,  pp.  187-195. 

(a)  11  Pet.  102  ;  95  D.  350  ;  149  U.  S.  698  (711-713) ;  21 

How.  506 ;  4  Wheat.  316 ;  9  Wheat.  203 ;  175  U.  S. 
211. 

(b)  169  U.  S.  366  ;  97  D.  248,  note;  1  R.  399  ;  35  D.  326; 

92  D.  468;  95  U.  S.  465. 
(c-)  16  Pet.  1  (18,  19)  ;  96  D.  73. 


§  182.  Of  the  Concurrent  Topical  Jurisdiction  of  Federal  Law 
and  State  Law. 
Within  the  intermediate  field  of  rights  and  duties  above 
mentioned  there  are  many  which  at  present  are  conceded  to 
be  under  the  authority  both  of  the  United  States  and  the  in- 
dividual State,  and  consequently  to  be  proper  subjects-matter 
as  well  of  State  as  of  Federal  Law.  But  State  and  Federal 
authority  do  not  in  reference  to  such  matters  stand  on  equal 
ground.  If  they  did,  a  conflict  might  arise  between  them 
which  would  be  irreconcilable.  On  all  such  matters  the 
authority  of  the  United  States  is  superior  to  that  of  any  or 
all    individual  States.     Until  the   United   States   has  taken 


§  183  FEDERAL  AND  STATE  LAW.  177 

cognizance  of  these  subjects  and  enacted  laws  concerning 
them,  each  State  may  treat  them  in  its  own  territory  as  under 
its  jurisdiction  and  may  make  and  apply  laws  for  their  admin- 
istration. But  when  Federal  Law  has  once  embraced  them 
State  Law  ceases  to  have  any  force  concerning  them  until  the 
Federal  Law  has  been  repealed.  Instances  of  such  superior 
authority  in  Federal  Law  are  seen  in  the  supersession  of  State 
insolvent  laws  by  a  national  bankruptcy  act,  in  the  exercise 
of  State  authority  over  certain  navigable  waters  until  the 
United  States  assumes  control  over  them,  and  in  the  removal 
of  causes  from  the  State  courts  into  the  Federal  courts,  at 
the  demand  of  either  party,  when  they  involve  the  interpre- 
tation of  the  Acts  of  Congress  or  the  Constitution  of  the 
United  States.  («) 

Read  1  Kent,  Lect.  xviii,  pp.  3S7-395;  Cooley,  C.  Law,  Ch.  ii, 
pp.  35,  30,  Ch.  iv,  pp.  83-85. 
(a)  70  D.  151;   4  Wheat.  122;  7  D.  106;  95  U.  S.  459; 
113  U.  S/205. 


§  183.    Of  the  Judicial  Application  of  Federal  Law  and  State 

Law. 
Both  Federal  Law  and  State  Law  are  administered  in  all 
the  courts  of  the  United  States  and  of  the  individual  States. 
No  doubt  a  great  proportion  of  the  cases  raising  questions  of 
Federal  Law  are  heard  and  determined  in  the  Federal  courts, 
and  by  far  the  greater  number  of  questions  as  to  the  law  of 
any  State  are  adjudicated  in  the  courts  of  that  State.  But 
this  is  the  result  of  circumstances,  not  of  legal  requirement. 
Whenever  the  courts  of  the  United  States  in  the  trial  of 
causes  are  called  upon  to  interpret  and  apply  a  purely  local 
State  law  under  which  the  rights  of  the  parties  have  been 
acquired,  as  distinguished  from  the  general  or  commercial 
law,  they  give  to  it  the  same  construction  which  it  has  re- 
ceived in  the  State  of  its  enactment,  and  apply  it  as  it  would 
have  been  applied  had  the  suit  been  prosecuted  in  the  local 
courts,  (n)  Similarly  a  State  court,  meeting  in  a  case  before 
it  with  a  question  of  Federal  Law.  accepts  the  decision  of  the 

12 


178  AMERICAN    JURISPRUDENCE.  §1^4 

question  already  made  or  likely  to  be  made  by  the  courts  of 
the  United  States,  and  passes  judgment  on  the  case  in  view 
of  that  decision,  (b)  By  thus  keeping  inviolable  the  doctrines 
of  the  Federal  Law  and  of  the  State  Law  by  whatsoever  court 
they  may  be  administered,  and  by  recognizing  the  superiority 
of  Federal  Law  over  all  matters  concerning  which  there  can 
be  any  question  as  to  rightful  jurisdiction,  serious  conflicts 
between  the  State  Law  and  the  Federal  Law  have  been  almost 
entirely  prevented,  and  those  which  have  arisen  have  been  of 
a  political  rather  than  a  legal  character. 

Read  (a)  107  U.  S.  20  (33,  34) ;  125  U.  S.  555  (582-585) ;  12 
Wheat.  153;    11   Wheat.  361;  4  Wall.  196(203, 
204) ;  8  Wall.  575;  5  Pet.  398;  165  U.  S.  593. 
(b)  37  D.  761  ;  40  D.  705 ;  55  D.  494. 


SECTION   V. 

OF   ENGLISH    LAW    AND    AMERICAN   LAW. 

§  184.    Of  the  English  Portion  of  our  Law. 

The  division  of  our  law  into  English  Law  and  American 
Law  results  from  the  derivation  of  our  law  from  two  quite 
distinct  sources.  Prior  to  the  Revolution  the  people  of  this 
country  were  governed  by  the  law  of  England,  so  far  as  its 
rules  were  applicable  to  their  circumstances,  together  with 
such  statutes  as  the  colonial  legislatures  might  enact.  The 
law  of  England  was  then  composed  of  the  ancient  maxims 
and  definitions  of  the  common  law,  the  great  Charters  of  the 
Crown  and  Acts  of  Parliament,  and  the  decisions  of  the 
various  English  courts.  Taking  its  name  from  its  origin, 
this  entire  body  of  law  was  and  is  called  the  "common  law," 
not  in  this  case  to  distinguish  it  from  the  Civil  or  Roman  Law 
or  from  the  "written  law,"  but  from  the  rules  of  law  origin- 
ating in  the  United  States.  Under  this  law  the  colonists  had 
lived  for  five  generations,  when  the  Declaration  of  Indepen- 
dence severed  their  connection  with  the  mother  country  and 
erected  the  several  colonies  into  independent  States.  But 
this   severance   wrought   no   special    change   either  in  their 


§§  185,  186      ENGLISH    AND    AMERICAN    LAW.  170 

private  legal  rights  and  duties  or  in  their  ideas  as  to  the 
proper  methods  of  enforcing  or  protecting  them.  The  same 
system  of  law  which  had  answered  their  purposes  and  gov- 
erned their  conduct  while  subjects  of  the  British  sovereign 
corresponded  to  their  needs  when  that  sovereignty  was  trans- 
ferred to  local  governments  of  their  own  creation,  and  thus 
became  the  law  of  the  new  nation  as  it  embarked  upon  its 
independent  political  career.  («) 

Read  Dillon,  Lect.  v,  pp.  155-157,  Lect.  xiii,  pp.  350-388. 
(a)  23  D.  280  (290-291). 


§  185.    Of  the  American  Portion  of  our  Law. 

Upon  this  foundation  of  the  English  Law  both  the  public 
and  the  private  law  of  the  United  States  was  gradually 
raised.  New  conceptions  of  the  nature,  attributes,  and  resi- 
dence of  sovereignty,  new  conditions  of  public  and  private 
affairs,  have  found  expression  in  rules  by  which  the  English 
law  of  1770  has  been  in  many  respects  modified,  extended, 
or  superseded,  and  these  rules  constitute  the  American  as  dis- 
tinguished from  the  English  Law.  They  are  contained  in  our 
written  State  and  Federal  Constitutions,  in  local  statutes  and 
Acts  of  Congress,  and  in  the  reported  judgments  of  our  courts. 
But  even  in  these  documents  the  English  and  American  Laws 
are  intimately  blended.  The  new  provisions  are  but  shoots 
or  scions  sprouting  from  or  grafted  into  the  ancient  tree.  The 
trunk  and  stem  are  still  the  venerable  and  imperishable 
system  of  the  old  English  common  law,  sprung  from  the  soil 
and  nourished  by  the  spirit  of  a  people  whose  regard  for 
personal  liberty  and  whose  practical  wisdom  in  the  conduct 
of  affairs  have  never  been  surpassed  among  the  sons  of  men. 


§  186.    Of   the    Extent  to  which  English  Law  now  Enters  into 
our  Law. 

To  what  extent  the  doctrines  of  the  English  Law,  as  it 
existed  at  the  time  of  the  Revolution,  now  prevail  in  our 
American  States  is  a  matter  of  some   uncertainty.     Where 


180  AMERICAN    JURISPRUDENCE.  §  187 

any  of  its  rules  are  formulated  in  our  statutes  or  incorporated 
in  our  Constitutions  or  adopted  and  applied  by  our  courts, 
they  are,  of  course,  part  of  our  local  law.  Where  any  State 
has  framed  for  itself,  by  legislative  or  judicial  action,  a  new 
law  partially  or  wholly  inconsistent  with  the  corresponding 
mandate  of  the  English  Law,  the  new  rule  supersedes  the  Eng- 
lish rule,  if  indeed  that  rule  was  ever  recognized.  But  where 
a  State  has  as  yet  taken  no  position  in  favor  of  or  against  the 
English  rule,  and  questions  are  raised  which  the  courts  of 
that  State  could,  if  they  would,  refer  to  the  English  rule, 
their  determination  is  controlled  by  the  same  principle  which 
influenced  the  colonists  in  their  acceptance  or  rejection  of  the 
common  law.  If  in  the  circumstances  of  the  case  the  Eng- 
lish rule  is  just  and  consonant  with  the  usages  of  the  people 
of  the  State,  it  is  regarded  as  having  always  been  a  part  of 
the  common  law  of  the  State  and  is  enforced  accordingly,  (a) 
Read  (a)  19  St.  364;  62  D.  742. 


§  187.  Of  the  Dependence  of  the  American  Portion  of  our 
Law  upon  the  English  Portion. 
This  distinction  between  the  rules  of  law  originating  in 
this  country  and  the  rules  of  law  derived  from  England  is  not 
obliterated  by  the  adoption  of  the  English  rules  by  our  own 
courts  and  legislatures.  True,  these  rules  then  become  a 
portion  of  our  law,  but  they  do  not  thereby  cease  to  be  dis- 
tinguished from  its  other  portions  by  several  important  char- 
acteristics. In  the  first  place,  the  English  Law  is  in  a  certain 
sense  superior  to  the  American,  as  the  trunk  and  root  are 
superior  to  the  grafted  branches  of  the  tree.  Thus  the  Eng- 
lish Law  furnishes  a  standard  of  interpretation  to  the  Ameri- 
can Law  as  to  all  terms  and  phrases  which  had  acquired  a 
settled  meaning  in  the  English  Law  prior  to  the  Revolution, 
unless  it  is  apparent  that  American  lawgivers  have  intended 
that  they  should  be  differently  understood.  The  English  Law 
is  also  regarded  as  the  law  governing  all  cases  for  which  no 
rule  of  the  American  Law  has  been  hitherto  provided,  unless 
the  English  rule  has  been  formally  repudiated  or  a  rule  in- 


§  188  ENGLISH   AND   AMERICAN   LAW.  181 

consistent  with  it  is  now  announced.  Again,  an  English  rule, 
once  recognized,  remains  in  force  notwithstanding  the  enact- 
ment of  an  American  rule  covering  the  same  subject,  unless 
the  latter  rule  expressly  or  impliedly  excludes  the  former,  for 
an  American  rule  in  derogation  of  an  English  rule  is  always 
construed  strictly  so  as  to  leave  as  far  as  possible  the  opera- 
tion of  the  English  rule  unimpaired.  Finally,  whenever  the 
American  Law  confers  a  right,  whether  it  be  a  public  or  a 
private  right,  and  yet  supplies  no  remedy  for  its  violation 
the  public  wrong  is  to  be  punished  or  the  private  wrong 
redressed  according  to  the  methods  afforded  by  the  English 
Law.  (a) 

Read  Black,  Ch.  viii,  §§  94-99. 

(a)  11  Pet.  120  (545,  546);  91  U.  S.  270;  169  U.  S.  649 
(654,  655) ;  49  D.  697. 


§  188.  Of.  the  Interpretation  of  the  English  Portion  of  our  Law 
by  the  English  Decisions. 
In  the  second  place,  the  distinction  between  the  English 
Law  and  the  American  Law  manifests  itself  in  the  authority 
which  attaches  to  the  decisions  of  the  English  courts  as  inter- 
preters and  expounders  of  these  two  component  portions  of 
our  law.  In  reference  to  a  rule  originating  in  this  country 
an  English  case  has  no  binding  authority,  even  when  a  simi- 
lar rule  exists  in  England  and  is  explained  and  applied  in 
that  particular  case,  although  the  case  may  be  considered  by 
our  courts  and  will  influence  them  according  to  its  intrinsic 
merits.  But  in  reference  to  a  rule  derived  from  the  English 
Law  a  case  decided  in  England  before  the  Revolution  is  of 
binding  authority  with  our  judges  also,  until  formally  and 
intentionally  overruled,  and  cases  decided  since  the  Revolu- 
tion are  entitled  to  respect  although  not  of  the  same  obligation 
as  their  predecessors.  Thus  the  English  treatises,  statutes, 
and  reports  prior  to  1770  are  an  essential  part  of  our  own 
legal  literature,  and  keeping  in  view  those  variations  in  our 
circumstances  which  affect  our  legal  conditions  and  relations, 
are  the   sources    from  which  our  knowledge  of  the  English 


182  AMERICAN   JURISPRUDENCE.  §  189 

portion  of  our  law  is  drawn.  That  Blackstone's  Commenta- 
ries contain  a  summation  of  the  English  Law  as  it  existed 
at  the  date  when  it  became  incorporated  with  our  own,  is  a 
sufficient  reason,  apart  from  the  many  other  excellences  of 
that  unrivalled  production,  for  its  universal  acceptance  and 
authority  among  the  lawyers  and  jurists  of  the  United 
States,  (a) 

Read  Dillon,  Lect.  xi,  pp.  297-313. 
(a)  43  D.  373  (382,  383). 


§  189.  Of  the  American  States  in  which  the  English  Law  has 
been  Adopted  as  a  Portion  of  their  Law. 
What  has  thus  far  been  stated  concerning  the  relations  of 
the  English  and  American  Law  is  true  of  the  original  thirteen 
colonies  and  of  the  States  into  which  they  have  since  been 
formed.  Into  the  new  States  created  out  of  territory  occupied 
by  English  settlers  or  their  descendants,  or  not  occupied  by 
any  organized  political  community,  the  English  Law  has  also 
been  extended,  and  there  combined  with  the  American  Law 
imported  into  or  developed  in  the  new  community,  the  two 
systems  constituting,  as  in  the  older  States,  the  body  of  their 
local  law.  In  States  formed  out  of  territory  already  popu- 
lated by  inhabitants  of  different  origin  and  having  their  own 
established  systems  of  law,  the  previous  system  takes  the 
place  which  in  the  other  States  is  held  by  English  Law.  Such, 
for  example,  is  the  case  in  Louisiana,  where  before  the  ces- 
sion of  that  territory  to  the  United  States  the  Civil  Law  pre- 
vailed, and  where  it  still  forms  the  basis,  interprets  the 
provisions,  and  supplies  the  defects  of  the  American  Law. 
Into  the  law  of  the  United  States  as  a  nation  the  English 
Law  has  largely  entered.  The  Federal  Constitution  is  an 
embodiment  of  principles  most  of  which  had  been  imbedded 
in  that  law  for  centuries,  and  from  it  has  been  borrowed  in 
great  measure  the  Federal  legislation  by  which  rights  are 
affirmed  and  remedies  applied,  (a) 

Read  (a)  3  Wheat.  212 ;  7  Cranch,  32;  3  Pet.  443  (446,  447). 


§  190  ENGLISH   AND    AMERICAN   LAW.  183 

§  190.    Of   the    Presumption    that   the   English   Portion    of   our 
Law  is  Identical  in  all  our  American  States. 

A  natural  presumption  growing  out  of  this  historical  condi- 
tion of  the  greater  part  of  the  United  States  is  that  the  Eng- 
lish Law  prevails  to  an  equal  extent  in  all  the  States  of  the 
Union,  and  that  any  rule  of  that  law  which  has  been  accepted 
by  any  State  is  adopted  and  in  force  in  every  other.  This 
presumption  is  recognized  and  acted  on  by  our  courts,  (a)  It 
is  open  to  rebuttal  and,  as  is  evident  from  what  has  been 
already  stated,  is  subject  to  many  limitations.  As  each  of 
the  States  has  proceeded  independently  of  the  others  in  its 
acceptance  or  rejection  of  the  doctrines  of  the  English  Law, 
no  other  uniformity  among  them  was  to  be  expected  than  such 
as  necessarily  grows  out  of  the  similarity  of  their  conditions 
and  the  identity  of  their  political  conceptions.  Thus  States 
whose  early  inhabitants  resembled  one  another  in  origin, 
pursuits,  religious  sympathies,  and  social  traditions,  resemble 
one  another  also  in  the  extent  to  which  they  have  preserved 
in  their  jurisprudence  the  ancient  rules  of  the  English  Law, 
while  States  whose  populations  were  widely  variant  in  these 
respects  correspondingly  differ  from  one  another  in  the 
character  or  number  of  the  English  rules  to  which  they  still 
adhere.  As  a  consequence  of  this  resemblance  or  divergence 
among  the  States,  the  decisions  of  the  courts  of  one  State 
upon  questions  of  law  are  not  of  equal  weight  in  every  other, 
but  are  of  great  authority  in  States  into  whose  law  the 
English  element  enters  in  the  same  degree  and  of  less  influ- 
ence, or  even  of  none  whatever,  in  other  States  in  proportion 
to  the  quantity  of  English  Law  which  they  retain. 
Read  (a)  23  D.  536  ;  2  It.  81 ;  68  D.  658. 


184  AMERICAN   JURISPRUDENCE.  §  191 


CHAPTER   VII. 

OF   THE  JURISDICTION  OF  LAWS. 

§  191.  Of  the  Recognition  and  Enforcement  by  one  State  of 
the  Laws  of  other  States. 
The  jurisdiction  of  a  State  over  all  persons  and  things 
within  its  territory  is  supreme,  and,  if  it  chooses,  it  can  sub- 
ject them  absolutely,  and  in  reference  to  every  particular 
right  and  duty,  to  its  laws.  Were  all  mankind  embraced  in 
one  State,  or  were  there  no  relations,  public  or  private,  be- 
tween States  or  between  their  citizens,  the  assertion  by  the 
State  of  such  absolute  and  exclusive  supremacy  for  its  laws 
would  not  only  be  natural  but  would  produce  no  serious 
inconvenience.  When,  however,  as  has  always  been  the 
case  to  some  extent  and  is  especially  true  'in  the  modern 
world,  the  intercourse  between  States  is  intimate  and  inces- 
sant, the  commercial  and  domestic  relations  between  citizens 
of  different  States  are  numerous  and  imjiortant,  the  transfer 
of  residence  and  even  of  citizenship  from  one  State  to  an- 
other is  of  frequent  occurrence,  and  the  rights  and  duties  of 
any  individual  may  thus  extend  far  beyond  the  territory  of 
the  State  in  which  he  dwells,  reason  and  justice  demand  that 
every  State  should  so  far  recognize  the  laws  of  other  States, 
under  which  its  subjects  have  acquired  rights  or  assumed 
duties,  as  to  secure  the  performance  of  their  duties  and  the 
protection  of  their  rights.  In  answer  to  this  demand  has 
grown  up  that  doctrine  of  interstate  comity,  in  obedience  to 
which  all  civilized  States  admit,  in  certain  cases  arising  in 
their  own  territory,  the  jurisdiction  of  laws  other  than  their 
own  and  administer  and  enforce  them  in  their  courts  with 
equal  fidelity  and  vigor.  Thus  while  the  jurisdiction  of  a 
State  is  absolute  and  exclusive  over  all  things  and  persons  in 


§  192  JURISDICTION   OF   LAWS.  185 

its  territory,  it  cannot  be  concluded  that  such  is  the  jurisdic- 
tion of  its  laws.  In  many  instances  its  laws  give  way  to 
those  of  other  States,  which  it  treats,  for  the  time  being,  as 
if  they  were  its  own. 

Read   Story,   Conf.   L.   §§  23-38  a  ;  Cooley,   C.  Law,  Ch.   x, 
pp.  196-212. 


§  192.  Of  the  Present  Enforcement  of  Laws  Already  Repealed. 
Moreover,  as  a  general  rule,  the  laws  by  which  at  any  par- 
ticular period  a  State  is  governed  are  the  laws  theretofore 
enacted  and  not  then  repealed.  Laws  once  in  force  but  since 
rescinded  and  laws  hereafter  to  be  made  are  alike  unavailable 
for  the  definition  and  assertion  of  rights  or  the  prevention 
and  redress  of  wrongs.  And  this  would  be  the  universal  rule 
were  rights  and  duties  immediate  and  evanescent,  having  no 
roots  in  the  past  and  bearing  no  fruit  in  the  future.  The 
laws  of  the  present  moment  would  then  be  sufficient  to  fix  the 
limits  of  the  one  and  secure  the  full  performance  of  the  other. 
But  with  the  continual  changes  of  the  law  on  one  hand,  and 
the  persistent  character  of  rights  and  duties  on  the  other, 
the  present  rule  of  law,  apart  from  any  connection  with  the 
past,  may  be  entirely  inadequate  to  afford  that  protection  to  a 
vested  right  which  it  is  the  principal  purpose  of  the  law  to 
furnish,  and  hence  it  becomes  necessary  for  the  State  in  infer- 
ence to  that  particular  vested  right  to  recognize  and  follow 
rules  which  it  has  long  since  banished  from  its  current  laws. 
As  in  those  cases  where  reason  and  justice  require  it  to  sub- 
stitute a  foreign  law  for  its  own  the  State  yields  to  the  re- 
quirement, so  where  the  same  motives  demand  that  the 
jurisdiction  of  its  present  laws  should  be  superseded  by  the 
jurisdiction  of  laws  which  it  has  formally  repealed,  it  will 
concede  this  also,  and  apply  the  old  law  rather  than  the  new. 
Thus  in  the  same  State  several  rights  of  the  same  class,  iden- 
tical in  all  respects  as  rights,  may  as  to  the  same  persons  be 
under  the  control  of  different  laws,  as  the  result  of  different 
changes  in  the  law  between  the  dates  at  which  the  several 
rights  accrued. 


186  AMERICAN   JURISPRUDENCE.         §§  193,  194 

§  193.  Of  the  Jurisdiction  of  Laws  :  "  Conflict  of  Laws  : "  "  Pri- 
vate International  Law." 
Under  the  jurisdiction  of  what  laws  a  right  must  find  pro- 
tection, therefore,  depeuds  not  merely  on  the  present  condi- 
tion of  the  laws  in  the  State  where  the  right  seeks  protection, 
but  on  the  laws  of  other  States  as  well  as  on  its  own  past  legal 
rules.  The  questions  thence  arising  are  often  of  no  ordinary 
difficulty.  The  perplexity  which  they  occasion  in  the  legal 
mind  has  given  to  the  body  of  rules  in  which  their  solution 
is  attempted  the  name  of  "Conflict  of  Laws"  —  not  because 
the  laws  themselves  conflict,  for  the  law  which  governs  any 
individual  fact  is  always  single  and  consistent  with  itself  — 
but  because  of  the  conflict  of  opinions  which  these  questions 
have  been  and  are  still  liable  to  provoke.  Other  authorities 
have  given  it  the  title  of  "Private  International  Law,"  using 
the  middle  term  in  an  equivocal  and  consequently  an  erroneous 
sense,  and  also  treating  the  questions  as  if  they  arose  only 
m  reference  to  the  jurisdiction  of  the  laws  of  different  nations, 
whereas  they  pertain  also  to  the  laws  of  subordinate  States 
and  to  the  varying  laws  of  the  same  State.  As  the  real  ques- 
tion always  is :  Under  the  jurisdiction  of  what  laws  did  the 
right  accrue  and  must  its  protection  be  secured?  the  broader 
name  expressive  of  that  question  has  been  here  adopted,  and 
the  subject  will  be  treated  according  to  its  natural  divisions: 

(1)  Jurisdiction  of  the  laws  as  dependent  upon  Place;  and 

(2)  Jurisdiction  of  the  laws  as  dependent  upon  Time. 

Read  Holland,  Ch.  xviii,  pp.  358-371;  Walker,  Lect.  xlii 


SECTION    I. 

OF    THE    JURISDICTION    OF    THE    LAWS    AS    DEPENDENT    UPON 

PLACE. 

§  194.    Of  the  Lex  Fori. 

That  all  questions  .as  to  legal  rights,  duties,  wrongs,  and 
remedies  are  to  be  determined  by  the  current  laws  of  the  State 
in  which  they  arise  is  presumed  until  the  contrary  appears; 


§  194  JURISDICTION   OF   LAWS.  187 

and  the  person  who  invokes  the  aid  of  other  laws  must  prove 
that  in  his  case  the  comity  of  States  requires  their  recog- 
nition and  enforcement. (a)  The  law  of  the  State  where  the 
question  is  raised  is  known  as  the  "Lex  Fori,"  the  law  of 
the  Forum  or  Court,  the  law  prevailing  in  the  territory  within 
and  for  which  the  court  is  held.  By  whatever  law  the  rights, 
duties,  and  wrongs  which  are  involved  in  the  controversy  may 
be  defined  and  measured,  it  is  manifest  that  all  questions 
concerning  the  remedy  and  its  application  must  be  governed 
by  the  lex  fori.  In  the  assertion  of  rights  and  duties,  and 
in  the  prohibition  of  wrongs,  only  mental  conceptions  and 
the  words  which  express  them  are  employed,  and  the  courts 
of  one  State  can  temporarily  adopt  these  conceptions  and  ex- 
pressions from  the  laws  of  another  State  without  serious  in- 
convenience. But  not  so  with  the  remedy.  The  remedy  calls 
into  action  the  practical  machinery  of  the  law,  which  must 
operate  in  prescribed  methods  when  it  operates  at  all,  and  it 
would  be  impossible  for  a  State  to  change  the  organization 
anil  jurisdiction  of  its  courts,  their  forms  of  procedure,  their 
rules  of  evidence,  and  their  modes  of  enforcing  their  decrees, 
in  order  to  bring  them  into  conformity  with  those  of  another 
State  in  which  the  right  had  been  created  or  the  wrong  com- 
mitted. Hence  all  these  matters,  and  whatever  else  may  be 
connected  with  the  administration  of  remedies,  must  be  con- 
trolled by  the  lex  fori.(b)  The  form  of  action  to  be  brought; 
the  court  in  which  the  suit  must  be  commenced;  the  process 
of  summons,  attachment,  or  arrest;  the  pleadings  and  proof; 
the  trial,  judgment,  and  execution;  the  measure  of  damages; 
the  limitation  of  actions;  are  examples  of  those  matters  over 
which  the  lex  fori  necessarily  has  exclusive  jurisdiction,  even 
when  the  comity  of  the  State  is  most  liberally  displayed 
toward  other  States  in  its  recognition  of  their  substantive 
rules  of  law.  (V) 

Read  Story.  Conf.  L.  §§  556-558. 
(a)  63  D.  661. 
(ft)  06  D.  345. 

(r)  65  I).  679,  36  D.  364;  4  R.  29 ;  9  How.  407;  37  D. 
187. 


188  AMERICAN   JURISPRUDENCE.         §§  195,  196 

§  195.    Of  the  Laws  which  may  Supersede  the  Lex  Fori. 

The  laws  which  the  State  of  the  forum  will  in  suitable  cases 
permit  to  supersede  its  own  are:  (1)  The  Lex  Ligeantice,  or 
the  law  of  the  foreign  State  to  which  one  of  the  parties  con- 
nected with  the  controversy  owes  allegiance;  (2)  The  Lex 
Domicilii,  or  the  law  of  the  domicile  of  one  of  the  parties; 
(3)  The  Lex  Rei  Sitaz,  or  the  law  of  the  place  where  the 
thing  in  controversy  is  situated;  (4)  The  Lex  Loci  Actus,  or 
the  law  of  the  place  where  some  matter  involved  in  the  con- 
troversy transpired;  (5)  The  Lex  Loci  Contractus,  or  the  law 
of  the  place  where  the  contract  in  controversy  was  made;  (6) 
The  Lex  Loci  Solutionis,  or  the  law  of  the  place  where  the 
contract  in  controversy  was  to  be  performed;  (7)  The  Lex 
Loci  Pacti,  or  the  law  of  the  place  by  whose  laws  the  parties 
to  a  contract  expressly  agreed  that  their  rights  under  it  should 
be  determined.  And  though  recourse  by  the  tribunals  of  any 
State  to  foreign  laws  is  in  practice  comparatively  rare,  yet  it 
is  not  impossible  that  in  a  single  case  comity  may  require 
that  all  these  different  systems,  each  perhaps  pertaining  to  a 
different  State,  should  be  consulted  in  order  that  the  true 
rules  governing  the  various  points  in  controversy  may  be 
ascertained,  (a) 

Read  (a)  46  St.  439,  note ;  16  D.  212. 


§  196.    Of  the  Lex  Ligeantiee. 

The  Lex  Ligeantice,  or  law  of  natural  allegiance,  is  the  law 
which  defines  the  relations  between  a  person  and  the  State  of 
which  he  is  a  native  born  citizen,  as  well  as  his  political 
relations  to  foreign  States.  His  civil  condition;  capacity  to 
act  and  contract  under  the  laws  of  his  own  State ;  his  legiti- 
macy, majority,  subservience  to  guardianship;  or,  in  the  case 
of  a  married  woman,  the  disabilities  attaching  to  her  cover- 
ture, —  are  fixed  by  this  law  not  only  before  the  courts  of  his 
native  State  but  in  all  other  States  where  perfect  comity  pre- 
vails. The  rights  and  duties  which  attach  to  him  at  home 
follow  him  when  he  travels  into  distant  States  and  emanci- 


§  197  JURISDICTION   OF   LAWS.  189 

pate  him  from  many  obligations  to  which  their  citizens  are 
bound;  and  this  immunity,  if  attacked  in  foreign  courts,  he 
can  secure  by  directing  the  attention  of  the  court  to  those 
laws  of  his  own  country  by  which  his  political  status  is  de- 
fined. The  most  prominent  examples  of  the  recognition  of 
this  law  are  those  concerning  ambassadors  and  ministers  of 
States  who,  while  residing  in  the  nations  to  which  they  are 
accredited  still  remain  subject  even  in  private  matters  only  to 
the  laws  of  their  own  State;  or  those  of  navies  and  armies 
passing  through  a  foreign  territory  by  consent  of  its  sovereign, 
who  are  regulated  there  as  elsewhere  by  their  own  military 
laws.  The  lex  ligeantice,  however,  cannot  create  artificial 
disabilities  which  foreign  States  are  bound  by  comity  to 
recognize.  The  person  who  under  the  laws  of  his  own  State 
is  a  slave,  or  civilly  dead,  or  subject  to  the  penalty  of  infamy 
or  attainder,  or  deprived  of  ordinary  rights  because  of  his 
religion  or  social  rank,  is  not  regarded  as  such  by  the  courts 
of  other  countries  where  these  legal  disabilities  are  unknown 
and  where  the  laws  imposing  them  are  prohibited.  The  lex 
ligeantice  ceases  either  to  bind  or  to  protect  when  the  allegi- 
ance ceases,  and  this,  according  to  the  modern  doctrine  in 
the  United  States,  is  at  the  option  of  the  citizen  who  may 
by  taking  proper  steps  transfer  his  citizenship  from  one  State 
to  another,  and  it  may  be  superseded  by  the  law  of  domicile 
whenever  the  legal  residence  of  the  party  has  been  perma- 
nently changed,  (a) 

Read  Story,  Conf.  L.  §§  51-54. 

(a)  17  1).  179,  note;  55  D.  87. 


§  197.    Of  the  Lex  Domicilii. 

The  Lex  Domicilii,  or  law  of  the  domicile,  is  the  law  in 
force  in  that  place  where  the  person  has  his  legal  home.  In 
a  State  with  no  political  subdivisions  and  where  the  citizen 
has  no  power  to  transfer  his  allegiance  or  his  legal  residence 
to  another  State,  the  lex  ligeantice  and  the  lex  domicilii  would 
be  the  same.     But  in  a  State  composed  of  minor  States  or  of 


190  AMERICAN    JURISPRUDENCE.  §  197 

municipalities  endowed  with  delegated  sovereignty,  or  under 
laws  which  recognize  the  right  to  change  allegiance  or  to  ac- 
quire a  domicile  in  States  to  which  the  person  owes  no  per- 
manent allegiance,  the  law  of  the  domicile  is  superadded  to 
the  law  of  allegiance  and  governs  the  person  in  particulars 
to  which  the  law  of  allegiance  does  not  extend.  This  close 
relation  between  the  lex  ligeantice  and  the  lex  domicilii,  and 
the  possibility  that  States  may  exist  in  which  they  would  be- 
come identical,  has  made  it  difficult  to  assign  to  each,  where 
they  are  really  separate,  its  distinct  jurisdiction,  and  modern 
courts  and  writers  thus  frequently  impute  to  the  law  of  domi- 
cile control  over  many  or  all  of  the  matters  which  have  been 
here  referred  to  the  law  of  allegiance,  especially  those  con- 
cerning personal  capacities  and  disabilities.  This  diversity 
of  views,  however,  indicates  no  practical  difficulty  in  the 
application  of  the  law,  since  whether  the  law  to  which  a 
person  is  subject  be  and  be  called  the  lex  ligeantice  or  the 
lex  domicilii  there  is  rarely  or  never  any  doubt  as  to  what 
system  of  laws  it  is  by  which  his  personal  rights  and  duties 
are  determined.  If  domiciled  in  a  simple  State,  uncom- 
pounded  of  political  subdivisions,  the  entire  law  of  that  State 
is  his  law  of  domicile.  If  domiciled  in  a  State  with  such 
subdivisions  the  law  of  the  State  is  the  law  of  his  domicile 
as  to  all  matters  not  specifically  regulated  by  the  local  laws 
of  the  political  subdivision  in  which  he  resides,  and  as  to 
these  his  law  of  domicile  is  the  local  law.  Thus  the  domi- 
ciliary law  of  any  particular  person  may  be  derived  from 
several  domiciliary  systems  —  from  that  of  the  city,  that  of 
the  dependent  State,  that  of  the  nation  —  and  the  totality  of 
rules  attaching  to  the  person  because  of  the  locality  of  his 
legal  home  will  constitute  for  him  the  law  of  domicile.  By 
this  law,  coincident  or  coupled  with  his  lex  ligeantice,  are 
governed  all  matters  which  in  the  eye  of  the  law  are  so  con- 
nected with  his  person  as  to  be  inseparable  from  it,  —  such  as 
capacity,  status,  domestic  relationship  and  their  incidental 
rights,  (a)  Questions  concerning  personal  property,  its  char- 
acter, capability  of  ownership,  transfer  by  gift  or  contract  or 
will,  susceptibility  to  trusts  and  their  administration  are  also 


g  198  JURISDICTION   OF  LAWS.  191 

settled  by  the  law  of  the  owner's  domicile  in  whatever 
domestic  or  foreign  tribunal  they  may  arise,  unless  the 
State  where  it  is  located  has  by  its  own  laws  expressly 
asserted  an  exclusive  dominion  over  it.  (b) 

Read  Story,  Conf.  L.  §§  40-49  d,  55-106,  125-230  c,  374-423  h, 
464-473 c,  480-482,  490-491  d. 

(a)  28  D.  132;  12  D.  475;  14  D.  201;  65  D.  109;  43  R. 

669. 

(b)  3Cranch,  319;   90  D.  390  ;  9    Pet.  483  ;  28  D.  142; 

14  How.  400  (424-426)  ;  35  D.  472,  note. 


§  198.    Of  the  Lex  Rei  Sitae. 

The  Lex  Rei  Sitce,  or  the  law  of  the  place  where  the  thing 
in  controversy  is  situated,  always  governs  real  property, 
whether  corporeal  or  incorporeal.  It  would  be  contrary  to 
reason  that  any  portion  of  the  territory  of  a  sovereign  should 
be  subject  to  the  laws  of  a  foreign  State,  and,  therefore, 
whatever  he  prescribes  concerning  it  must  everywhere  be 
recognized  as  its  controlling  rule.  Thus  the  distinctions  be- 
tween real  property  and  personal ;  the  number  and  character  of 
estates  in  realty  and  their  mode  of  creation  and  transfer;  the 
forms,  validity,  interpretation,  and  effect  of  contracts,  deeds, 
wills,  mortgages,  and  judgments  relating  to  real  propert}', 
are  fixed  by  the  lex  rei  sitcv.  (a)  All  suits  at  law  by  which 
the  possession  of  the  realty  is  to  be  directly  influenced  or 
the  ownership  of  it  permanently  settled  must  be  brought  before 
the  courts  of  the  same  State  and  decided  according  to  its 
laws.  The  authority  of  a  court  in  any  other  State  in  refer- 
ence to  it  is  limited  to  a  declaration  of  the  rights  of  the 
contesting  claimants  and  a  decree  against  their  persons  com- 
pelling them  to  take  such  action  in  the  State  rei  sitce  as  will 
there  adjust  their  rights  according  to  its  declaration,  (b) 
The  lex  rei  sitce  will  likewise,  if  the  State  <>f  situs  so  deter- 
mines, govern  all  personal  property  within  its  borders,  not- 
withstanding the  foreign  domicile  or  allegiance  of  its  owner; 
and  the  State  of  the  forum  will  then  recognize  and  enforce  the 


192  AMERICAN    JURISPRUDENCE.  §  199 

lex  rei  sitae  of  the  personal  estate  instead  of  the  lex  domicilii 
or  lex  ligeantice  which  it  would  otherwise  sustain,  (c) 

Read  Story,  Conf.  L.  §§  363-373  h,  424-464,  474,  479  o,  483- 
489  c,  492-504  a. 
(a)  33  D.  147  ;  22  D.  41 ;  94  U.  S.  315 ;  10  Wheat.  192; 

165  U.  S.  566. 
(6)  67  D.  89,  note. 
(c)   7  Wall.  139 ;  12  D.  468  ;  5  Pet.  518 ;  5  Wall.  307. 

§  199.    Of  the  Lex  Loci  Actus. 

The  Lex  Loci  Actus,  or  the  law  of  the  place  where  some 
matter  involved  in  the  controversy  transpired,  controls  every 
transaction  which  is  begun,  continued,  and  completed  accord- 
ing to  its  laws.  A  transaction  valid  according  to  the  law  of 
the  State  where  it  occurs  is,  as  to  the  transaction  itself,  valid 
everywhere.  Thus,  for  example,  a  marriage  between  parties 
competent  to  marry,  contracted  in  accordance  with  the  local 
law,  is  valid  in  all  other  States  unless  because  of  its  polyga- 
mous or  incestuous  character  it  is  contrary  to  their  funda- 
mental policy  or  morals,  (a)  The  appointment  and  official 
acts  of  public  officers,  the  proceedings  and  judgments  of 
courts,  the  conduct  of  business  affairs  and  the  rights  and 
obligations  thence  arising,  the  organization  and  direction  of 
corporate  enterprises,  always  provided  that  the  mandates  of 
the  local  law  are  faithfully  obeyed,  are  respected  and  accepted 
in  all  other  jurisdictions,  (b)  Some  authorities  indeed  go  even 
farther  than  this,  and  assert  that  the  capacity  of  the  parties 
to  enter  into  the  transaction  is  also  to  be  measured  by  the 
lex  loci  actus,  and  hence  that  the  transaction  will  be  valid 
although  the  parties  were  incapable  according  to  the  laws  of 
their  allegiance  or  uomicile;  but  while  this  may  be  held  true 
in  the  State  where  the  event  occurred  other  States  can  hardly 
be  expected  to  admit  its  right  to  set  aside  the  general  prin- 
ciple that  personal  capacity  depends  upon  the  law  of  domicile 
or  of  allegiance  and  to  bind  the  whole  world  by  its  assump- 
tion of  such  authority,  (c)  The  question  is,  however,  a  very 
difficult  one,  especially  in  such  cases  as  that  of  a  marriage 
between  parties  who  under  the  lex  loci  acttis  had  a  right  to 


§  200  JURISDICTION   OF   LAWS.  193 

marry,  but  one  or  both  of  whom  was  incapacitated  by  the  law 
of  domicile,  where  the  refusal  by  the  courts  of  other  States  to 
recognize  the  marriage  must  not  only  disgrace  the  parties,  who 
may  have  acted  in  good  faith,  but  render  their  descendants 
illegitimate. 

Read  Story,  Conf.  L.  §§  107-124  b  ;  2  Whart.  I.  L.  Dig.  §  261. 

(a)  8  D.  131  ;  23  D.  549 ;  77  D.  598;  21  D.  743 ;  18  R. 

509 ;  60  St.  936,  note. 

(b)  39  St.  196  ;  38  St.  536. 

(c)  46  St.  439,  note. 


§  200.    Of  the  Lex  Loci  Contractus. 

The  Lex  Loci  Contractus  or  law  of  the  place  where  the  con- 
tract in  controversy  was  made,  with  some  exceptions  hereafter 
to  be  mentioned,  regulates  the  form,  execution,  proof,  authen- 
tication, interpretation,  and  validity  of  the  contract,  and  con- 
sequently the  rights  and  duties  which  it  creates,  («)  The 
place  where  a  contract  is  made  is  the  State  in  which  the 
agreement  is  completed  and  becomes  legally  binding,  where- 
soever the  negotiations  may  have  been  carried  on  or  the  docu- 
ments which  express  the  terms  of  the  conti'act  may  have 
been  drawn,  (b)  Whatever  enters  into  the  contract  even  as  an 
accessory,  like  the  promise  to  pay  interest  if  the  principal 
debt  remains  unpaid  or  a  legal  defence  to  its  enforcement  or 
an  excuse  for  its  non-performance,  is  governed  by  the  same 
law;  if  valid  there,  it  is  valid  everywhere;  if  invalid  there, 
it  is  valid  nowhere,  (c)  But  the  lex  loci  contractus  cannot 
override  the  lex  rei  sitae  as  to  its  subject-matter  nor  the  lex 
domicilii  as  to  the  capacity  of  the  parties  to  contract;  though 
as  to  the  latter  point  the  same  difficulty  occurs  as  in  reference 
to  the  lex  loci  actus  of  which  the  lex  loci  contractus  is  a  subor- 
dinate division,  (d) 

Read  Story,  Conf.  L.  §§  231-279  a,  362-362  b. 

(a)  30  D.  472. 

(b)  13  D.  281 ;  99  D.  663,  note. 

(o)  37  St.  186;  28  R.  241;  47  St.  456;  1  Wall   298  ;  13 

Pet,  65. 
(d)  10  St.  690.  note. 
13 


194  AMERICAN    JURISPRUDENCE.  §  201 

§  201.    Of  the  Lex  Solutionis 

The  Lex  Solutionis,  or  law  of  the  place  where  the  con- 
tract in  controversy  was  to  be  performed,  supersedes  the  lex 
loci  contractus,  in  whole  or  in  part,  where  the  contract 
though  made  in  one  State  was  to  be  performed  in  another, 
and  where  the  parties  had  in  view  the  laws  of  the  latter 
State  and  intended  to  be  governed  by  them.  This  limitation 
of  the  lex  loci  contractus  is  an  endeavor  to  make  the  contract 
conform  as  far  as  possible  to  the  real  intent  and  purpose  of 
the  parties.  Where  the  contract  is  made  in  the  same  State 
in  which  it  is  to  be  performed,  the  parties  are  presumed, 
unless  they  have  expressly  stated  otherwise,  to  have  had  in 
mind  the  laws  of  that  State  and  to  have  so  framed  their 
contract  that  under  those  laws  they  would  obtain  the  benefits 
they  had  desired.  But  where  the  contract  was  to  be  per- 
formed iu  a  State  other  than  that  in  which  it  was  made,  it  is 
in  many  cases  probable,  and  in  some  cases  certain,  that  they 
have  contemplated  the  advantages  which  could  be  secured 
only  under  the  laws  of  the  State  of  performance  and  have 
agreed,  at  least  tacitly,  to  be  governed  by  those  laws.  Ful- 
filling their  intention  as  nearly  as  it  may,  which  the  law 
always  does,  the  State  of  the  forum  adopts  the  law  of  the 
State  of  performance  as  its  guide  in  all  matters  pertaining  to 
the  contract  as  it  would  have  adopted  and  followed  the  lex 
loci  contractus  if  the  contract  were  to  have  been  performed  in 
the  same  State  where  it  was  made.  Thus,  for  example, 
a  promissory  note  executed  and  delivered  in  one  State,  but 
expressly  made  payable  in  another,  is  enforceable  according 
to  the  laws  of  the  latter  State,  whatever  may  have  been  its 
legal  status  in  the  former.  Some  authorities,  however,  con- 
sider this  rule  as  too  broadly  stated,  and  insist  that  the  lex 
solutionis  should  control  only  such  matters  as  concern  the 
performance  of  the  contract,  leaving  to  the  decision  of  the 
lex  loci  contractus  all  questions  as  to  its  existence,  interpreta- 
tion, and  validity,  (a) 

Read  Story,  Conf.  L.  §  280. 

(a)  37  R.  583,  note  ;  106  U.  S.  124;  142  U.  S.  101;  4ft 
St.  439,  note  ;  91  U.  S.  406. 


§§  202,  203  JURISDICTION    OF    LAWS.  195 

§  202.    Of  the  Lex  Loci  Pacti. 

The  Lex  Loci  Parti,  or  the  law  of  the  place  by  whose  laws 
the  parties  to  a  contract  have  expressly  agreed  that  their 
rights  under  it  should  be  determined,  will  be  followed  by  the 
courts  in  preference  to  the  lex  loci  contractus  or  the  lex  solu- 
tionis whenever  it  is  proved  that  such  an  agreement  has  actu- 
ally been  made.  This  rule  is  a  mere  recognition  of  the  legal 
right  of  the  parties  to  incorporate  into  their  contract  whatever 
elements  they  please,  provided  it  contains  nothing  contrary 
to  the  public  policy  of  the  State  where  it  is  made  or  where 
its  obligations  are  to  be  enforced.  Thus  the  jurisdiction  of 
the  lex  loci  pacti  seems  to  rest  its  claim  for  recognition  by 
other  States,  not  so  much  on  the  comity  due  to  the  State  from 
which  the  law  originated,  as  on  the  ordinary  principle  of  law 
that  contracts  shall  be  construed  and  carried  into  effect 
according  to  the  true  intention  of  the  parties  so  far  as  that 
can  be  ascertained,  (a) 

Read  (a)  129  U.  S.  397. 


§  203.    Of  the  Extent  of  Comity  and  its  Subordination  to  Law. 

To  what  an  extensive  investigation  of  foreign  laws  a  single 
legal  controversy  may  lead,  and  by  the  rules  of  how  many 
sovereignties  its  various  contentions  may  require  to  be  de- 
cided, it  is  now  easy  to  perceive.  An  action  to  recover  the 
price  of  land  may  raise  the  question  of  the  validity  of  the 
contract  to  be  determined  by  the  lex  tod  contractus  and  the 
lex  solutionis  or  the  lex.  lo<-{  -pacti;  this  in  turn  may  involve 
the  ownership  of  the  vendor  to  be  settled  by  the  lex  rei  sitae, 
and  this  again  may  call  into  dispute  his  legitimacy  under  his 
lex  domicilii  or  the  validity  of  the  marriage  of  his  parents 
under  the  lex  loci  actus  or  their  capacity  to  marry  under  their 
lex  ligeantue  .  and  thus  the  inquiry  may  develop,  step  by  step, 
until  the  jurisdiction  of  the  laws  of  nearly  all  the  civilized 
nations  of  the  earth  has  been  invoked.  To  all  these  rules 
the  courts  administering  the  lex  fori  give  such  recognition  as 
the  laws  of  their  own  State  will  permit,  for  comity  yields  in 


196  AMERICAN   JURISPRUDENCE.  §  204 

every  case  to  express  local  law,  and  no  State  is  required  by 
the  common  courtesy  of  nations  to  give  effect  to  laws  which 
contradict  its  political  theories  or  violate  its  established  moral 
or  religious  principles,  (a) 

Read  (a)  32  D.  307;  48  D.  706;  61  D.  617;  66  D.  502;  89  D. 
643  ;  103  U.  S. 261 ;  129  U.  S. 355  ;  159  U.  S.  113. 


SECTION   II. 

OF    THE   JURISDICTION    OF    LAWS    AS    DEPENDENT    UPON   TIME. 

§  204.  Of  the  Stability  of  Rights  under  Necessary  Changes  in 
the  Laws. 
Every  right,  duty,  wrong,  and  remedy  is  presumed  to  be 
governed  by  the  laws  prevailing  at  the  time  when  the  ques- 
tion as  to  its  existence,  character,  or  availability  is  raised  in 
the  courts  of  the  forum  ;  and  any  party  to  the  controversy  who 
seeks  protection  from  the  provisions  of  laws  formerly  in  force 
but  now  repealed  must  show  affirmatively  that  by  them,  and 
not  by  present  laws,  his  interests  are  to  be  determined.  That 
he  should  have  this  privilege  is  necessary  to  good  government. 
The  power  of  the  State  to  make  new  laws  as  the  welfare  of  the 
people  may  require,  and  thereby  to  supersede  or  modify  the 
old,  cannot  be  restricted  without  destroying  the  essential 
attribute  of  sovereignty.  Some  laws  are  intended  to  be  tem- 
porary and  are  so  expressed,  and  when  the  time  fixed  for  their 
duration  ends  they  expire  by  their  own  limitation,  and  except 
as  to  such  transactions  under  them  as  are  completely  closed 
they  have  no  more  authority  than  if  they  had  never  been 
enacted.  Other  laws,  intended  to  be  permanent,  are  found  in 
practice  to  be  inconvenient,  and  are  curtailed,  extended,  or 
abolished  according  to  the  judgment  of  the  State.  The  evo- 
lution of  new  social  conditions  demands  other  laws  to  meet 
them,  whose  rules  thenceforth  apply  to  subjects  which  are 
wholly  new  or  have  been  previously  governed,  in  part  at 
least,  by  different  laws.  Thus  the  laws  of  every  living  State 
are  constantly  changing  —  the  more  rapidly  in  proportion  to 
the  civilization  and  progressiveness  of  the  State  —  substitut- 


§  205  JURISDICTION    OF    LAWS.  197 

ing  for  old  systems  of  law  under  which  rights  have  been  as- 
serted, duties  imposed,"  wrongs  forbidden,  and  remedies  pro- 
vided, new  systems  under  which  other  rights,  duties,  wrongs, 
and  remedies  will  obtain  legal  recognition,  and  in  their  time 
these  systems  too  will  pass  away  and  others  take  their  place. 
Manifestly,  if  with  this  inevitable  disappearance  of  a  legal 
system  the  rights  and  duties,  wrongs  and  remedies,  existing 
under  it  also  vanished  that  very  stability  of  rights  which  it 
is  the  principal  purpose  of  civil  government  to  secure  could 
never  be  attained.  To  preserve  these  inviolate  the  laws  from 
which  they  sprang  must  be  regarded  as  still  in  force  so  far 
as  they  are  concerned,  and  courts  must,  therefore,  in  reference 
to  them,  have  recourse  to  the  laws  prevailing  in  the  period 
when  the  right  accrued.  This  privilege  of  a  party  to  appeal 
to  former  laws,  and  the  corresponding  obligation  of  the 
courts  to  notice  and  apply  them,  are  measured  by  the  follow- 
ing rules. 

§  205.  Of  the  Validity  of  Transactions  Completed  under  Laws 
Since  Repealed. 
The  first  of  these  rules  is  that  every  transaction,  valid 
according  to  the  laws  under  which  it  was  commenced  and 
completed,  remains  valid  though  such  laws  are  subsequently 
modified  or  repealed.  Thus  a  marriage,  a  contract,  a  convey- 
ance, a  judgment,  legally  sufficient  at  the  time  of  their  occur- 
rence, are  not  rendered  insufficient  by  future  legislation, 
though  if  occurring  under  the  later  law  they  would  have  been 
entirely  null  and  void,  (a)  But  this  immunity  does  not  attach 
to  transactions  commenced  and  not  completed  under  former 
laws,  nor  to  the  incidental  consequences  of  completed  transac- 
tions. A  change  in  the  law  during  the  progress  of  an  act  brings 
the  remainder  of  the  act  under  the  new  law.  and  by  this  law 
its  legality  and  effect  when  completed  must  be  judged;  and 
the  legal  aspects  of  the  results  flowing  from  the  act  may  be 
varied  by  new  laws  introduced  after  the  act  is  finished.  (/>) 
If,  for  example,  while  a  suit  were  pending  an  alteration  were 
made  in  the  law  concerning  the  Form  and  effect  of  civil  judg- 
ments, the  judgment  in  the  suit  would  be  subject  to  the  new 


198  AMERICAN    JURISPRUDENCE.  §  206 

law,  not  the  old;  or  if,  after  a  judgment  in  satisfaction  of 
which  the  body  of  the  execution-debtor  could  have  been  im- 
prisoned, a  statute  is  enacted  abolishing  imprisonment  for 
debt,  the  remedy  against  the  body  is  no  longer  available. 
But  though  no  change  of  laws  can  impair  the  validity  of  past 
transactions,  new  laws  may  clothe  with  due  validity  transac- 
tions which,  under  the  laws  in  force  when  they  occurred,  were 
invalid  on  account  of  the  omission  of  prescribed  formalities  or 
because  the  parties  labored  under  legal  disabilities,  provided 
no  vested  rights  of  other  persons  are  disturbed.  A  marriage 
defective  because  the  parties  were  of  insufficient  age,  a  con- 
veyance lacking  a  witness  or  a  seal,  may  thus  be  healed  by 
later  laws,  unless  to  legalize  this  marriage  would  attack  the 
validity  of  one  afterwards  contracted,  or  to  heal  this  convey- 
ance would  impair  the  title  of  a  later  bona  fide  purchaser,  (c) 
But  acts  entirely  null  and  void,  such  as  the  marriage  of  a 
party  already  lawfully  united  to  another  wife  or  husband  or 
the  judgment  of  a  court  having  no  jurisdiction  over  the 
subject-matter  of  the  suit,  cannot  be  cured  by  any  future 
legislation,  (d) 

Read  (a)  96  U.  S.  627;  79  D.  236. 

(b)  25  R.  513. 

(c)  16 D.  516;  23  Wall.  137;  17  D.  635  ;  10  D.  121,  note; 

76  D.  521,  note  ;  98  D.  237. 

(d)  68  D.  587  ;  80  D.  718,  note  ;  87  D.  240. 

§  206.    Of  the  Impregnability  of  Vested  Rights  of  Property. 

A  second  rule  is  that  no  repeal  or  change  of  laws  can  defeat 
a  vested  property  right.  This  rule  is  based  upon  essential 
principles  of  justice  and  is  specifically  declared  in  the  Consti- 
tutions of  many  of  our  States,  (a)  Vested  rights  are  distin- 
guished from  expectant  rights  and  contingent  rights.  A 
vested  right  is  one  which  already  exists  in  a  definite  person 
and  now  entitles  him  to  possess  and  enjoy  some  object  either 
at  once  or  in  the  future.  An  expectant  right  is  one  which, 
though  not  now  residing  in  any  definite  person,  will,  if  the 
laws  continue  unchanged,  eventually  vest  in  him.  A  contin- 
gent right  is  one  which  does  not,  and  except  in  certain  future 


§  207  JURISDICTION   OF   LAWS.  199 

contingencies  will  not,  vest  in  the  particular  person  under 
consideration.  Instances  of  expectant  or  contingent  rights 
are  those  of  the  probable  heirs  of  an  ancestor  not  yet  de- 
ceased; of  a  devisee  under  the  will  of  a  living  testator; 
of  a  husband  to  his  curtesy  before  the  birth  of  issue :  of  a 
wife  to  her  dower  while  her  husband  still  survives:  of  the 
grantee  of  a  statutory  privilege,  such  as  exemption  from  taxes 
or  from  civil  arrest,  to  its  continuance;  of  the  owner  of  an 
estate  to  the  perpetuation  of  its  peculiar  legal  character. 
Such  rights  as  these  are  always  subject  to  changes  in  the  law. 
Rules  of  descent  may  be  altered,  the  requisites  of  valid  wills 
increased,  curtesy  and  dower  restricted,  statutory  privileges 
withdrawn,  the  nature  and  relations  of  estates  transformed, 
and  the  parties  affected  by  these  changes  must  abide  the  con- 
sequences, (b)  But  where  these  rights  are  once  vested  they 
become  impregnable.  As  soon  as  the  estate  has  descended  to 
the  heir  or  passed  into  the  ownership  of  the  devisee,  or  the 
right  to  curtesy  has  been  perfected  by  the  birth  of  issue  or 
that  to  dower  by  the  survival  of  the  wife,  or  the  statutory 
privilege  has  been  exhaustively  enjoyed,  no  future  alteration 
in  the  law  can  imperil  the  titles  of  the  widow,  husband,  heir, 
or  devisee,  or  enforce  the  obligations  from  which  the  exempted 
party  has  already  been  relieved,  (c)  Thenceforth  the  law  exist- 
ing when  the  right  vested  is  the  law  to  whose  jurisdiction  all 
questions  concerning  the  character,  extent,  and  ownership  of 
the  right  must  be  referred. 

Read  Cooley,  C.  Law,  Ch.  xvi,  pp.  345-35:5 ;   Austin,  Lect.  liii, 
pp.  856-8G9. 
(a)  11  Pet.  420  (539,  540);  2  Pet.  380. 
(6)   10  How.  395;  16  D.  715. 

(c)  11  I).  79;  5  D.  291;   23  D.  478;  66  D.  148  (149, 
150)  ;  96  D.  613. 

§  207.    Of  the  Inviolability  of  Contract  Obligations. 

The  third  rule  is  that  the  obligation  of  a  valid  contract 
cannot  be  impaired  by  any  subsequent  legislative  act.  Tins 
rule  is  but  the  statement  in  another  mode,  and  with  a  particular 
application,   of  the    first   and  second  rules   and  is   expressly 


200  AMERICAN   JURISPRUDENCE.  §  207 

formulated  in  the  Constitution  of  the  United  States,  (a)  The 
obligation  of  a  contract  is  that  legal  duty  which  the  law- 
imposes  on  the  parties  when  the  contract  is  made,  and  in- 
cludes not  only  the  duty  to  perform  the  contract  but  the  duty 
to  make  such  compensation  for  a  failure  to  perform  it  as  the 
law  may  at  that  time  provide.  It  presupposes  a  valid  con- 
tract, possessing  all  the  essential  requisites  of  a  true  contract 
and  conformable  in  all  respects  to  law,  and  the  existence  of 
an  adequate  legal  remedy  whereby  the  fulfilment  of  the  con- 
tract may  be  enforced  or  its  breach  may  be  redressed.  Want- 
ing in  these,  there  is  no  obligation  which  under  this  rule  is 
entitled  to  protection.  Thus  a  gratuitous  release  by  the 
State  from  some  legal  duty,  or  an  election  or  appointment  to 
public  office,  or  a  corporate  charter  under  which  no  obliga- 
tion rests  upon  the  incorporated  body,  are  not  contracts,  and 
consequently  the  release  may  be  rescinded  or  the  office  abol- 
ished or  the  charter  altered  or  repealed  at  the  pleasure  of  the 
State,  (b)  But  when  a  valid  contract  has  been  made  either 
between  the  State  and  individuals,  or  between  private  par- 
ties, no  law  can  be  enacted  which  releases  either  party  from 
its  duty  to  the  other  or  in  any  material  degree  changes  the 
obligation  in  extent  or  character,  or  substantially  diminishes 
or  delays  the  remedy  to  which  upon  its  breach  the  other  party 
is  entitled,  (c)  By  the  law  in  reference  to  whose  provisions 
it  was  originally  made  the  validity,  interpretation,  and  effect 
of  the  contract  must  be  decided,  and  its  obligation  as  thus 
ascertained  must  be  enforced  against  the  parties  by  every 
court  to  which  a  controversy  concerning  it  may  be  submitted, 
whatever  might  be  its  judgment  if  these  questions  were  to 
be  determined  by  the  present  laws. 

Read  Cooley,  C.  Law,  Ch.  xvi,  pp.  328-345,  358-363;  Cooley, 

Const.  Lim.  Ch.  ix,  pp.  273-294. 
(a)  6  Cranch,  87. 
(6)   24  How.  300  ;  22  Wall.  527. 
(c)   90  D.  311  ;    88  D.  622  ;  1  How.  311;  4  Wall.  535; 

96  U.  S.  595  ;  91  D.  245 ;  14  D.  722 ;  92  D.  56 ;  79 

D.  490;  6  D.  531,  note;   12  R.  507;  45  D.  246; 

115  U.  S.  650. 


§§  208,  209  JURISDICTION   OF    LAWS.  201 

§  208.    Of  Ex  Post  Facto  Laws. 

A  fourth  rule  is  that  no  ex  post  facto  law  is  valid.  An  ex 
post  facto  law  relates  to  public  wrongs  alone.  It  is  a  law 
which  either  makes  criminal  an  act  that  when  committed  by 
the  party  was  no  offence  against  the  State,  or  creates  a  higher 
crime  out  of  a  lower  one  already  perpetrated,  or  aggravates 
the  punishment  which  was  attached  to  past  offences  by  the  law 
at  the  time  of  their  occurrence,  or  changes  rules  of  evidence 
or  procedure  to  the  disadvantage  of  an  accused  person  after 
the  completion  of  the  act  for  which  he  is  to  be  tried,  (a)  Such 
laws  are  in  themselves  dangerous  to  the  liberties  of  citizens, 
are  liable  to  work  grave  injustice,  and  consequently  are  dis* 
favored  in  all  enlightened  States,  and  in  this  country  are 
expressly  prohibited  by  Constitutional  provisions.  Under 
this  fourth  rule,  coupled  with  the  first,  a  criminal  enactment 
can  be  invoked  against  a  person  only  in  reference  to  acts 
committed  and  penalties  to  be  inflicted  while  it  remains  part 
of  the  current  law;  the  repeal  of  a  criminal  law,  without  a 
saving  clause  in  reference  to  offences  perpetrated  while  it  was 
in  force,  rendering  all  future  prosecution  for  such  acts 
impossible,  (b) 

Read  Cooley,  C.  Law,  Ch.xv,  pp.  312-314  ;  Cooley,  Const.  Lim. 
"  Ch.  ix,  pp.  264-27:;. 
(a)  3  Dall.  386;  4  Wall.  277;  7  St.  G74 ;  9  D.  608;  134 
U.  S.  160;    171   U.  S.  380;   107  U.  S.  221;   45  R. 
531;  170  U.S.  343;  39  R.  558;  37  St.  572,  note; 
64  St.  376,  note. 
(5)  34  D.  492;  25  R.  760. 


§  209.    Of  Retrospective  Laws. 

Subject  to  the  foregoing  rules  the  character  and  scope  of 
legislation  rests  in  the  discretion  of  the  State.  Retrospective 
laws  concerning  civil  rights  and  duties,  wrongs  and  remedies, 
may  be  enacted  provided  they  do  not  invalidate  past  transac- 
tions, nor  disturb  vested  rights  of  property,  nor  impair  con- 
tract obligations.  The  law  of  remedies  may  bo  changed  to 
any  extent  which  does  not  materially  hinder  litigants  from 


202  AMERICAN    JURISPRUDENCE.  §  210 

obtaining  the  same  redress,  or  its  equivalent,  to  which  the 
law  entitled  them  at  the  time  their  rights  accrued.  New 
forms  of  action,  new  methods  of  trial,  new  rules  of  evidence, 
new  modes  of  satisfaction,  may  be  substituted  for  the  old.  (a) 
Statutes  of  limitation  may  be  passed,  narrowing  but  not 
unreasonably  diminishing  the  period  within  which  suits  must 
be  commenced.  (6)  Avenues  of  escape  from  the  incidental 
consequences  of  transactions  completed  under  former  laws 
may  be  opened  by  Bankruptcy  Acts  or  other  statutes  of 
repose,  (c)  For  though  the  State  may  not  devest  a  vested 
right,  nor  invalidate  a  valid  act,  it  is  not  bound  to  maintain 
perpetually  the  same  system  for  protecting  rights  nor  to  fur- 
nish to  all  injured  parties  in  all  ages  the  same  measure  and 
species  of  compensation  for  their  wrongs.  Nor  would  it  be 
possible  that  while  following  in  its  law  of  remedies  the 
changes  in  the  social  and  political  conditions  of  its  people  it 
should  preserve  in  detail  every  remedy  that  it  had  once 
adopted  and  apply  it  at  the  present  day  according  to  the 
laws  in  force  when  the  duty  was  imposed  or  the  wrong  com- 
mitted. For  the  same  reason,  therefore,  that  the  lex  fori 
regulates  all  matters  pertaining  to  the  remedy,  must  these 
matters  be  controlled  by  the  laws  of  the  present  and  not  of 
any  former  time. 

Read  Cooley,  C.   Law,  Ch.  xvi,  pp.  354-358;    Cooley,  Const. 
Lim.  Ch.  xi,  pp.  369-389. 
(«)  58  D.  66. 

(b)    17  Wall.  596;  95  U.  S.  628. 
(e)   38  D.  317;  3  How.  534;  45  St.  700  (715-718). 


§  210.    Of  the  Standard  of  the  Jurisdiction  of  Laws  as  Depend- 
ent upon  Time. 

The  jurisdiction  of  laws  as  dependent  upon  time  is  thus 
determined  by  the  nature  of  the  subject-matter  to  which  the 
laws  relate  and  concerning  which  the  question  of  jurisdiction 
has  arisen.  Transactions  completed  under  laws  no  longer 
existing  and  valid  according  to  those  laws,  rights  vested  or 
contract  obligations  imposed  in  pursuance  of  laws  since  re- 


§§  211,  212  PROOF   OF   LAWS.  203 

pealed,  acts  and  omissions  to  which  the  laws  then  current 
attached  no  liability,  are  to  be  judged,  sustained,  enforced,  or 
vindicated,  whenever  made  the  subject  of  dispute,  as  if  the 
former  laws  were  still  in  operation.  All  other  matters, 
whether  incidental  or  remedial,  are  governed  by  the  present 
law. 

SECTION   III. 

OF    THE   PROOF    OF    LAWS. 

§  211.    Of  the  Mode  of  Proving  Domestic  and  Foreign  Laws. 

Courts  are  presumed  to  be  familiar  with  all  the  current 
provisions  of  the  lex  fori  and  to  refresh  their  recollection,  if 
necessary,  by  consulting  the  statute-books  and  other  reliable 
authorities.  They  also  take  notice  of  the  past  laws  of  their 
own  State  when  their  attention  is  directed  to  them  as  they 
appear  in  the  ancient  legislative  records  and  the  decisions  of 
the  courts  of  former  generations.  The  laws  of  foreign  States, 
however,  must  be  specially  pleaded  by  the  party  who  invokes 
their  aid,  and  their  existence,  genuineness,  authenticity,  and 
meaning  must  be  proved,  like  any  other  facts,  by  sufficient 
evidence.  Persons  learned  in  the  laws  of  the  State  in  ques- 
tion may  testify  upon  these  points,  or  properly  authenticated 
copies  of  the  statutes  and  decisions  may  be  produced,  (a) 

Read  (a)  89  D.  658,  note;  49  R.  200.  note  ;  16  D.  738, note;  11 
D.  779,  note  ;  2  Cranch,  187;  14  How.  400  (426- 
430) ;  116  U.  S.  1  ;  129  U.  S.  397  (445,446);  32  D. 
143,  note.        • 


§  212.    Of  the  Proof  of  International.  Federal,  and  English  Law. 

The  courts  of  every  civilized  country  take  judicial  notice 
of  the  rules  of  international  law  and  of  all  the  treaties  and 
compacts  into  which  its  own  nation  has  entered,  (a)  In  this 
country  tin-  courts  of  every  State  are  bound  to  know  the  pro- 
visions of  the  Federal  Constitution  and  the  laws  of  the  United 
States,  and  the  Constitutions  of  sister  States,  and  to  apply 
them  in  the  cases  over  which  those  laws  have  jurisdiction,  (b) 


204  AMERICAN    JURISPRUDENCE.  §  213 

There  is  also  a  general  presumption  that  such  portions  of  the 
English  Law  as  still  prevail  in  other  States  are  identical 
with  the  English  part  of  the  lex  fori,  and  unless  the  contrary 
is  claimed  no  proof  to  support  the  presumption  need  be 
offered,  (c) 

Read  (a)  159  U.  S.  113  (163). 
(6)  9  Pet.  607  (625). 
(J)  56  D.  318. 


§  213.    Of  the  Proof  of  Special  Legislative  Enactments. 

Where  rights  arise  out  of  a  legislative  act  affecting  particular 
individuals  only,  and  on  their  behalf  departing  from  or  adding 
to  the  general  law,  such  act,  though  having  all  the  force  of  law 
in  this  particular  case,  is  not  regarded  as  a  part  of  the  lex 
fori  of  which  the  courts  must  take  judicial  notice.  Even  in 
the  State  of  its  enactment  it  must  be  pleaded  and  proved  as 
strictly  as  if  it  were  a  foreign  law.  The  usual  evidence  in 
its  support  is  an  authenticated  copy,  written  or  printed,  of 
the  legislative  act.  The  charter  of  a  private  corporation  is 
an  instance  of  such  enactment,  and  is  proved  by  its  production 
and  submission  to  the  court.  Laws  of  this  character  passed 
by  foreign  States  must  be  established  in  a  similar  manner. 


§  214  FORMS   OF   LAW.  205 


CHAPTER  VIII. 

OF  THE  FORMS  OF  LAW. 

§  214.    Of  the  Causes  of  the  Variety  in  the  Forms  of  Law. 

A  State  may  exercise  its  legislative  powers  through  many 
agencies,  and  corresponding  to  these  agencies  the  rules  of  law 
may  be  enunciated  in  many  forms.  Where  the  entire  sover- 
eignty of  the  State  resides  in  a  single  individual,  as  in  an 
absolute  monarchy,  his  edict  is  the  only  form  of  law.  In  a 
pure  democracy,  where  all  authority  is  lodged  in  the  assembly 
of  the  whole  people,  the  rules  which  they  adopt  by  popular 
vote  thereby  become  their  laws.  In  complicated  governments 
where  the  three  functions  —  legislative,  judicial,  and  execu- 
tive —  are  widely  distributed,  and  more  or  less  commingled 
in  the  same  official  personages,  commands  and  prohibitions 
are  prescribed  sometimes  directly  in  words  referring  to  the 
future,  sometimes  by  acquiescence  in  present  action  and 
acceptance  of  results,  sometimes  by  express  sanction  given 
to  conduct  already  past.  In  our  own  country  and  in  Eng- 
land, and  wherever  else  the  Common  Law  prevails,  all  these 
methods  are  employed.  Laws  are  enacted  by  the  whole  people 
framing  or  amending  State  or  Federal  Constitutions,  by  special 
legislative  bodies  entering  into  treaties  or  formulating  stat- 
utes, by  administrative  officers  making  rules  for  the  control 
of  departmental  business,  by  judicial  tribunals  erecting 
standards,  to  which  future  action  must  conform,  through  their 
approval  or  repudiation  of  actions  hitherto  committed.  Some 
of  these  forms  of  law  are  more  authoritative  than  the  rest  and 
in  the  event  of  conflict  supersede  all  others.  Each  is  gov- 
erned by  its  own  rules  as  to  the  validity  of  its  enactment 
and  the  mode  of  its  interpretation.     Hence  the  necessity  of 


206  AMERICAN    JURISPRUDENCE.         §§  215,  216 

distinguishing  between  them  and  of  giving  to  each  class  its 
appropriate  discussion,  (a) 

Read  (a)  6  Pet.  691  (714,  715). 


§  215.    Of  the  Unwritten  Law  and  the  Written  Law. 

The  primary  division  of  our  laws,  as  to  their  form,  is  into 
the  Written  Law  and  the  Unwritten  Law.  The  difference  be- 
tween these  forms  of  law  does  not  consist  in  the  fact  that  one 
has  been  reduced  to  writing  and  the  other  not,  but  that  the 
Written  Law  has  been  put  into  writing  by  the  legislative 
authority  itself  with  the  intent  that  the  written  words  when 
lawfully  interpreted  shall  measure  the  precise  limits  of  the 
rule,  while  the  Unwritten  Law,  although  contained  in  manu- 
scripts and  printed  books,  has  been  there  placed  by  private 
persons  or  by  public  officers  for  preservation  and  convenient 
reference  and  not  for  promulgation  as  verbally  authoritative 
law.  Historically,  at  least  so  far  as  known  in  our  own  juris- 
prudence, Written  Law  is  of  later  origin  than  the  Unwritten 
Law,  the  Written  Law  serving  rather  to  remedy  the  defects 
and  extend  the  application  of  the  principles  and  precepts  of 
the  Unwritten  Law  than  to  prescribe  new  rules  of  action.  In 
their  discussion  the  Unwritten  Law,  therefore,  logically  as 
well  as  chronologically,  precedes  the  Written  Law,  and  will 
be  first  subjected  to  investigation. 

Read  Amos,  Ch.  i,  p.  ."i;   Austin,  Leot.  xxviii-xxix,  pp.  512- 
533;  Clark,  Book  ii.  Ch.  i,  ii,  xii-xv. 


SECTION  I. 

OF    THE    UNWRITTEN    LAW. 

§  216.    Of  the  Origin  of  the  Unwritten  Law. 

The  Unwritten  Law  consists  in  part  of  primary  self-evident 
principles  of  action  whose  truth  and  justice  no  rational  human 
being  would  dispute,  and  which  are  spontaneously  recognized 
and  enforced  by  all  the  governmental  agencies  of  the  State. 


§  217  THE    UNWRITTEN   LAW.  207 

Except  for  these  it  is  composed  of  customs  which,  having  re- 
ceived the  sanction  of  the  State,  have  been  thereby  transmuted 
into  law.  For  this  reason  the  Unwritten  Law  is  often  called 
the  "Customary  Law;"  not  that  the  Written  Law  also  did 
not  originate  in  custom,  but  that  while  it  has  assumed  the 
form  of  positive  enactments  the  Unwritten  Law  still  preserves 
the  form  of  its  progenitor  and  is  the  law  which  the  people  are 
accustomed  instinctively  and  habitually  to  observe,  (a)  Tin- 
Unwritten  Law  is  a.  universal  form  of  law,  prevailing  in  all 
countries  and  in  all  ages,  of  slow  and  permanent  develop- 
ment, working  out  its  rules  by  gradual  experience,  seeking 
no  fixed  methods  of  expression,  immutable  in  its  principles 
but  varying  in  its  details  to  meet  the  convictions  and  require- 
ments  of  each  passing  generation.  (0)  Tt  manifests  at  all 
times  the  innate  genius  of  the  people,  and  the  determina- 
tions of  the  popular  will.  It  is  emphatically  the  "common 
law,"  the  law  emanating  from  the  common  wisdom  of  all  the 
members  of  the  commonwealth:  the  "law  of  the  land,"  the 
law  which  grows  up  out  of  the  social  needs  created  by 
the  union  of  the  people  with  the  soil.  It  constitutes  by  far 
the  most  important  portion  of  our  law  at  the  present  time,  and 
its  nature,  source,  and  method  of  development  ought,  there- 
fore, to  be  clearly  understood. 

Read  1  Kent,   Lect.   xxi.  p.  472 ;    Dillon,  Lect.   i,  pp.   5-20 ; 
Maine,  Ancient  Law,  Ch.  i,  pp.  1-13. 
(a)  3  Pall.  380  (395,  398);  39  D.  611. 
(/>)  12  Pet.  410  (437). 


§  217.    Of  the  Nature  and  Obligation  of  Customs. 

A  custom  is  a  usage  or  a  habitual  mode  of  acting,  adopted 
between  related  parties  by  express  or  tacit  agreement,  and 
continued  long  enough  to  be  rightly  relied  on  as  a  rule  of 
conduct  in  their  dealings  with  each  other.  Such  usages  in- 
evitably arise  whenever  two  or  more  human  beings  of  sutli- 
cient  mental  capaeity  to  govern  their  own  actions  are  brought 
into  persisting  relations  with  one  another.     The  character  of 


208  AMERICAN   JURISPRUDENCE.  §  218 

these  usages  is  determined  by  reason  and  instinct  which  lead 
men  to  adjust  their  relations  in  the  manner  most  beneficial  to 
themselves  and  to  correct  them  in  whatever  particulars  expe- 
rience may  have  demonstrated  to  be  necessary.  Justice  re- 
quires that  once  adopted  and  perfected  they  should  not  be 
changed  except  by  mutual  consent,  and  thus  their  recognition 
by  the  parties  at  the  outset  grows  by  continuance  into  an 
obligation  which  neither  is  at  liberty  to  ignore.  In  every 
degree  and  condition  of  society  these  usages  abound  —  in 
friendship,  in  business,  in  the  family,  in  the  church,  in  the 
State  —  and  social  life  is  made  up  of  these  observances  and 
social  peace  secured  through  their  authority,  (a) 
Read  (a)  13  Wall.  363;  111  U.  S.  412  (421). 


§  218.    Of  the   Mode   in  which   the    Obligation  of  Customs   is 
Enforced. 

So  long  as  all  the  parties  obligated  by  a  custom  comply 
with  its  requirements  they  remain  unconscious  of  its  force  and 
authority  as  a  rule  of  action.  («)  But  if  the  custom  is  in- 
fringed the  inconvenience  thence  resulting  at  once  calls  their 
attention  to  its  existence  and  awakens  their  sense  of  the  injus- 
tice caused  by  its  transgression.  Reason  affirms  that  wrong 
has  been  committed,  right  been  violated,  and  duty  unfulfilled; 
and  if  a  supreme  authority  exists  to  which  the  injured  party 
can  appeal  for  protection  and  redress  the  remedy  is  sought, 
and  through  its  allowance  or  refusal  by  the  supreme  authority 
the  usage  itself  is  either  repudiated  or  sustained.  A  usage 
thus  repudiated  disappears,  but  if  sustained  it  becomes  to  all 
the  parties  whose  relations  it  controls  a  manifest  and  no 
longer  disputable  rule.  This  process  of  evolution  from  simple 
voluntary  usage  into  authoritative  obligation  takes  place  con- 
tinually in  every  family,  in  every  State,  in  every  other  social 
organization;  and  in  the  course  of  centuries  vast  bodies  of 
rules  are  thus  developed  out  of  customs  leaving  still  unde- 
veloped even  vaster  groups  of  equally  important  customs 
which,  having  never  yet  been  challenged  or  infringed,  remain 


§  219  THE   UNWRITTEN   LAW.  209 

unsanctioned   save   by  the   reason  of  the   people  and   their 
mutual  good-will. 

Read  Holland,  Ch.  v,  pp.  50-56. 
(a)  10  St.  819. 


§  219,    Of   the   Transmutation  of   Customs    into   Retrospective 
Laws. 

The  act  by  which  a  custom  is  transformed  into  a  rule  of 
positive  law  is  its  judicial  sanction  b}^  the  courts.  This  can 
occur  only  when  the  existence  or  obligation  of  the  custom  is 
made  a  matter  of  legal  controversy  between  the  parties  to  it, 
and  the  court  upholds  the  custom  and  sustains  its  obligation. 
This  is,  in  effect,  the  enactment  of  a  retrospective  law 
enforcing  upon  the  parties,  as  to  a  past  transaction,  a  rule 
hitherto  unrecognized  as  law.  (a)  Whether  before  the  rule 
received  this  sanction  and  announcement  it  was,  in  any 
proper  sense,  a  part  of  the  unwritten  law  and  by  the  court 
has  now  been  simply  recognized  and  published,  or  whether  it 
was  then  a  mere  dictate  of  reason  and  justice  which  has  now 
been  elevated  into  law  by  the  legislative  authority  residing 
in  the  court,  is  a  question  which  has  long  been  strenuously 
contested.  But  it  is  a  question  rather  speculative  than  prac- 
tical. Every  decision  of  a  court  holding  the  parties  bound 
by  a  custom  which  never  till  that  moment  had  been  promul- 
gated as  law  is,  according  to  the  latter  theory,  an  act  of  judi- 
cial legislation,  resulting  in  a  new  though  retrospective  law. 
Under  the  former  theory  it  is  but  the  announcement  that  the 
law  had  previously  been  and  still  continues  to  be  what  the 
custom  had  expressed.  But  whatever  be  the  truth  on  this 
point,  it  is  certain  that  the  courts  take  notice  of  no  custom, 
as  a  matter  of  law,  until  it  has  thus  passed  judicial  scrutiny 
and  received  judicial  approbation,  but  in  the  first  instance 
treat  the  existence  of  the  usage  as  a  matter  of  fact  to  be 
established  by  evidence,  and  its  obligation  as  an  open  ques- 
tion to  be  determined  by  reason,  justice,  and  experience.  (At 
If  this  implies  the  residence  in  the  courts  of  actual  legislative 

14 


210  AMERICAN   JURISPRUDENCE.  §  220 

power,  their  inherent  right  to  it  is  one  of  their  essential  attri- 
butes and  has  been  too  long  acknowledged  to  be  now  seriously 
disputed. 

Read  Holland,  Ch.  v,  pp.  57-66 ;  Markby,  §§  76-80,  93-100  ; 
Austin,  Lect.  xxx,  pp.  534-547,  Lect.  xxxviii- 
xxxix,  pp.  642-659  ;  Dillon,  Lect.  x,  pp.  267,  268. 

(a)  7  Pet.  1 ;  30  D.  578. 

(b)  55  D.  163;  10  R.  407.  -    . 


§  220.  Of  the  Transmutation  of  Customs  into  Prospective  Laws. 
A  custom  having  received  judicial  sanction  in  a  controversy 
between  the  related  parties,  and  being  thus  made  a  retrospec- 
tive law  governing  the  transaction  out  of  which  the  contro- 
versy has  arisen,  becomes  a  prospective  law,  controlling  the 
future  conduct  of  these  and  other  parties  similarly  related,  by 
a  process  equally  spontaneous  and  inevitable.  There  is  a 
natural  tendency  in  the  human  mind  to  accept  the  decision  of 
a  competent  tribunal  as  correct  upon  any  question  not  involv- 
ing personal  interest  or  prejudice,  and  to  follow  it  on  subse- 
quent occasions  if  the  same  question  should  arise;  and  where 
there  is  a  relation  of  dependence  between  one  tribunal  and 
another  the  judgment  of  the  superior  tribunal  necessarily 
determines  that  of  the  inferior  in  all  controversies  of  the  same 
character,  and  obliges  it  to  maintain  and  apply  the  doctrines 
which  the  superior  has  proclaimed.  This  obligation  in 
some  cases,  and  this  natural  tendency  in  all,  to  stand  by  pre- 
vious decisions  (stare  decisis)  results  in  the  accumulation  by 
slow  degrees  of  so  many  judgments  sustaining  the  same  cus- 
tom that  no  doubt  can  exist  as  to  the  affirmation  of  the  custom 
in  any  future  case  in  which  it  may  be  contested.  Thus  all 
parties,  now  or  hereafter  occupying  toward  one  another  the 
precise  relations  out  of  which  the  custom  has  originated,  are 
forewarned  of  the  judgment  that  will  be  pronounced  upon 
them  by  any  tribunal  whose  interference  they  may  invoke,  and 
are  consequently  furnished  with  a  standard  to  which  their 
conduct  must  conform  if  they  would  escape  an  adverse  deci- 
sion.    In  this  manner,  without  prescribing  any  formal  rule, 


§  221  THE    UNWRITTEN    LAW.  211 

but  confining  their  utterances  strictly  to  the  controversies 
and  the  parties  in  the  cases  brought  before  them,  the  courts 
do  actually  promulgate  and  establish  prospective  laws  which 
are  of  the  same  practical  efficiency  as  if  they  had  been  spe- 
cifically enacted  by  a  legislative  body,  (a) 

Read  1  Bl.  Com.,  pp.  09-71  ;  1  Kent,  Lect.  xxi,  pp.  473-478; 
Dillon,  Lect.  viii,  pp.  229-235,  261;  Amos,  Ch. 
iv-v,  pp.  47-76;  Black,  Ch.  xvii,  §§  150-1.32; 
Clark,  Book  ii,  Ch.  iii-vi ;  Pollock,  Lect.  ii,  pp. 
50-59. 
(a)  27  D.  628,  note ;  1  Pet.  547  (692) ;  2  Black,  544 ; 
3  Wall.  332  ;  58  D.  575,  note. 


§  221.    Of  the  Customs  Entitled  to  Judicial  Sanction. 

A  custom  is  not  entitled  to  judicial  sanction  unless  it  pos- 
sesses certain  attributes.  First,  it  must  be  Immemorial;  that 
is,  it  must  have  existed  for  a  sufficient  period  of  time  to  have 
become  established  as  a  rule  of  action  in  that  class  of  cases 
of  which  it  is  henceforth  to  be  regarded  as  the  law.  This 
attribute  is  of  the  essence  of  a  custom  which  cannot  exist  as  a 
custom  until  the  instances  of  its  observance  have  so  multi- 
plied as  to  make  it  an  habitual  mode  of  action.  Second,  it 
must  be  Continued;  that  is,  it  must  not  have  been  alternated 
with  antagonistic  modes  of  action  but  must  have  been  con- 
stantly followed  whenever  any  of  this  class  of  cases  has  arisen. 
This  also  is  essential  to  a  custom,  since  habit  implies  uni- 
formity of  conduct,  and  out  of  a  series  of  contradictory  actions, 
however  long,  no  customary  mode  of  acting  can  arise.  Third, 
it  must  be  Peaceable:  that  is,  it  must  not  have  been  subject 
to  contention  or  dispute,  but  have  been  acquiesced  in  by  all 
parties  to  whom  it  pertained.  This  likewise  is  essential  to 
a  custom,  which  is  always  founded  in  agreement,  tacit  or  ex- 
pressed. Fourth,  it  must  be  Reasonable;  that  is,  it  must  not 
be  opposed  to  any  fundamental  principle  of  justice,  nor  in  its 
practical  operation  be  injurious  to  the  public  or  to  that  class 
of  persons  to  whose  conduct  it  relates.  This  attribute  is  not 
of  the  essence  of  a  custom,  for  it  is  conceivable  that  modes  of 


212  AMERICAN   JURISPRUDENCE.  §  221 

action  which  are  contrary  to  reason  and  justice  may  become 
habitual  even  in  entire  communities  to  the  ultimate  subver- 
sion of  the  commonwealth.  But  such  customs  ought  not  to 
receive  the  sanction  of  the  State,  which,  in  enacting  laws,  is 
bound  to  follow  reason  and  consult  the  interest  of  its  citi- 
zens; and  though  they  are  sometimes  embodied  in  statutes  or 
judicial  decisions  they  fall  within  that  class  of  invalid  laws 
which  a  wiser  second  thought  or  a  sad  experience  of  their 
consequences  soon  repudiates.  Fifth,  it  must  be  Certain; 
that  is,  it  must  not  either  in  the  rights  which  it  confers  or  in 
the  duties  it  imposes  be  indefinite  or  open  to  conjecture,  but 
must  furnish  to  all  persons  interested  iu  such  cases  a  reliable 
and  intelligible  rule  of  action.  This  attribute  distinguishes 
a  custom  which  is  perfect  and  complete  from  one  still  in  pro- 
cess of  formation.  Not  every  custom  springs  into  existence 
as  a  matured  habit  containing  all  its  elements  in  due  propor- 
tion. On  the  contrary,  it  begins  often  by  accident  or  chance, 
varies  in  content  and  in  details  as  experience  illustrates  their 
value,  and  only  after  many  vacillations  acquires  its  perma- 
nent and  unmistakable  form.  Until  it  has  arrived  at  this 
stage  of  development  it  cannot  serve  as  a  rule  of  conduct. 
A  rule  is  in  its  very  nature  fixed  not  variable,  apparent  not 
obscure,  and  equally  impossible  would  it  be  for  a  court  to 
define  a  rule  which  was  incapable  of  definition  and  to  apply 
a  rule  which  it  could  not  define.  Sixth,  it  must  be  Compul 
sory ;  that  is,  its  observance  must  not  have  been  optional  with 
individuals,  but  it  must  have  been  regarded  by  those  persons 
generally  to  whose  relations  it  pertains  as  a  rule  which  in 
honesty  and  good  faith  they  were  under  an  obligation  to  obey. 
This  attribute  is  also  characteristic  of  a  completed  custom, 
for  there  can  be  no  obligation  to  obey  a  varying  or  unintel- 
ligible rule.  The  compulsion  constituting  this  attribute  is  not 
a  legal  but  a  moral  one,  imposed  only  by  reason,  justice  and 
the  common  consent  of  the  parties  to  the  relation,  since  the 
legal  obligation  proper  does  not  accrue  until  the  custom  has 
received  judicial  sanction,  although  it  is  then  retroactively 
enforced  against  the  parties  as  if  it  had  always  been  a  rule  of 
law.     Seventh,  it  must  be  Consistent  with  other  customs;  that 


§  222  THE    UNWRITTEN    LAW.  213 

is,  it  must  not  contradict  nor  limit  the  observance  of  any  other 
judicially  established  custom  by  which  this  class  of  cases  is 
already  governed.  This  is  not  an  attribute  essential  to  a  cus- 
tom, for  customs  may  and  do  arise  which  are  contrary  to  ex- 
isting laws  as  a  result  of  those  natural  changes  in  society 
which  render  sanctioned  customs  inconvenient  and  necessitate 
the  formation  of  new  customs  which  contravene  the  old. 
In  such  cases,  when  the  new  custom  seeks  the  sanction  of  the 
courts  it  can  be  granted,  and  the  sanction  previously  given  to 
the  custom  now  obsolete  can  be  withdrawn;  but  both  cannot 
stand  together  as  inconsistent  rules  of  law.  Customs  adopted 
in  defiance  of  laws  still  suited  to  the  conditions  of  society  are 
not  entitled  to  recognition  and  will  not  receive  it.  (a) 

Read  1  Bl.  Com.,  pp.  70-79. 

(a)  35  I).  20*  ;  79  D.  056  :  93  D.  155 ;  8  How.  83  (102); 
93  D.  184  ;  83  D.  656  ;  88  D.  761 ;  18  R.  200,  note; 
25  D.  363  ;  45  D.  199  ;  51  D.  206. 


§  222.    Of  the  Antiquity  of  Customary  Law. 

Not  every  custom  which  has  become  a  part  of  the  Unwritten 
Law  can  now  be  traced  historicall}'  through  all  the  stages  of 
development  which  have  just  been  described.  By  far  the 
greater  part  of  them  had  been  evolved  before  the  dawn  of  his- 
tory and  first  appear  to  us  as  laws  whose  origin  no  then  exist- 
ing State  could  claim,  but  whose  authority  no  person  ventured 
to  deny.  In  the  primeval  ages  of  our  race,  in  the  family,  in 
tin'  village,  in  the  tribal  forms  of  social  life,  they  gradually 
emerged  from  actions  dictated  by  good  sense,  and  by  consider- 
ation for  the  rights  of  others,  into  habits  in  which  all  men  ac- 
quiesced, and  finally  under  the  sanction  of  whatever  political 
authority  then  ruled  the  infant  State  into  its  permanent  and 
binding  laws.  The  knowledge  acquired  by  studying  the  pro- 
cesses which  have  produced  the  Unwritten  Law  in  later  days 
we  read  back  by  analogy  into  that  undiscoverable  past,  and 
trace  its  genesis  with  the  same  certainty  as  that  of  animals 
and  plants  known  to  us  only  through  the  indelible  impres- 
sions they  have  left  upon  the  rocky  tablets  of  the  earth. 


214  AMERICAN    JURISPRUDENCE.         §§  223,  224 

§  223.    Of  the  Rise  and  Sanction  of  New  Customs. 

Not  all  the  customs  which  compose  existing  rules  of  action 
are,  however,  of  ancient  origin.  With  the  advancement  of 
society  new  relations  constantly  come  into  being,  new  modes 
of  life,  new  business  enterprises,  new  political  institutions 
are  added  to  or  supersede  the  old,  and  by  these  new  relations 
new  usages  are  generated  adapted  to  their  needs.  These  also 
by  continued  acquiescence  become  in  time  established,  and 
through  controversies  concerning  their  character  and  obliga- 
tions are  transmuted  into  rules,  and  so  pass  into  the  great  body 
of  the  Unwritten  Law  to  enrich  it  and  adorn  it  from  the  in- 
exhaustible resources  of  human  wisdom  and  experience.  It 
is  one  of  the  exalted  functions  of  the  lawyers  of  every  age 
to  watch  over  and  direct  this  ceaseless  growth  of  custom  and 
development  of  Unwritten  Law.  Under  their  care  the  clos- 
ing century  has  thus  witnessed  the  evolution  of  important 
branches  of  the  Law  of  Contracts  and  the  entire  law  of  Tele- 
graphs and  Railroads,  (a) 

Read  (a)  169  U.  S.  366. 


§  224.    Of  the  History  of  the  Unwritten  Law. 

Many  of  the  rules  of  our  own  Unwritten  Law  have  descended 
to  us  through  the  traditions  of  the  ages  from  the  earliest 
known  nations  of  Asia,  Africa,  and  Eastern  Europe.  The  cus- 
toms of  the  Teutonic  races  in  the  time  of  Tacitus,  inherited 
by  them  from  a  remote  Oriental  ancestry,  and  carried  by 
them  into  England  there  to  meet  and  merge  with  other  cus- 
toms of  the  aborigines  and  later  immigrants,  form  the  foun- 
dation on  which  has  been  built  the  superstructure  of  the 
Customary  Law  erected  during  the  past  nine  hundred  years. 
Before  the  Norman  Conquest  these  had  been  collected  into 
three  principal  systems;  the  Mercian  Laws,  in  force  in  the 
midland  counties  which  bordered  upon  "Wales;  the  Danish 
Laws,  which  prevailed  in  the  other  midland  counties  and  in 
the  eastern  coasts;  and  the  Laws  of  the  West  Saxons,  which 
governed  the  counties  in  the  west  and  south.  Of  these  laws 
King   Edward   the   Confessor   in  A.   d.    1065,    imitating   his 


§  224  THE   UNWRITTEN    LAW.  215 

predecessor  King  Alfred,  caused  a  compilation  to  be  made, 
constituting  one  uniform  body  of  laws  to  be  observed  through- 
out the  entire  kingdom.  These  are  the  famous  "Laws  of  the 
Confessor,"  to  maintain  which  the  Saxons  struggled  for  so 
many  generations  with  the  Norman  kings,  which  were  reas- 
serted in  Magna  Charta  and  after  six  centuries  of  conflict  were 
at  last  recognized  by  the  government  and  people  of  England 
as  the  real  substratum  of  their  law.  Upon  these  laws  were 
temporarily  imposed  the  customs  of  Norman  feudalism,  modi- 
fying in  many  respects  the  law  of  personal  and  property 
rights,  especially  those  relating  to  real  property,  but  these 
foreign  customs,  though  vigorously  enforced  under  the  earlier 
Norman  monarchs,  soon  yielded  to  the  reviving  doctrines  of 
the  ancient  Saxon  laws  and  with  the  reign  of  Cromwell  al- 
most wholly  disappeared.  Meantime  the  growth  of  popular 
power  manifested  particularly  through  the  House  of  Commons, 
with  the  consequent  recognition  by  the  sovereign  of  popular 
rights  and  individual  liberties,  the  development  of  trade  and 
commerce  and  of  new  industrial  and  agricultural  conditions, 
the  increasing  value  and  importance  of  personal  property, 
and  the  extension  and  improvement  of  the  law  of  remedies 
introduced  new  customs  which  the  courts  sanctioned  and 
transmuted  into  law,  until  the  era  of  our  Revolution  found 
the  English-speaking  races  on  both  sides  of  the  Atlantic  in 
possession  of  a  body  of  unwritten  law,  the  product  of  the 
Labors  of  along  line  of  learned  lawyers  and  judges  gathering 
and  refining  and  formulating  the  results  of  the  practical  wis- 
dom of  all  former  epochs,  a  body  of  law  vast  enough  to  meet 
all  the  requirements  of  their  social  and  political  conditions, 
reasonable  enough  to  have  been  the  guide  and  governor  of  the 
foremost  nations  of  the  modern  world,  just  enough  to  have 
made  equity  and  freedom  synonymous  with  English  Law. 

Read  1  Bl.  Com.,  pp.  17-26,  63-68  :  2  Bl.  Com.,  pp.  44-58,  75- 
77:  1  Bl  Com.,  pp.  407-443;  Dillon,  Lect.  i,pp.  27-33, 

Lect.  v.  p.  157-Lect.  vi.  p.  17:!:  Walker.  Lect.  iv.  pp. 
53,  ">1:  Wilson,  Pari  i.  Ch.  xii  :  Pollock.  Lect.  viii; 
Reeve,  Intro,]..  Ch.  i.  pp.  159-175,  Ch  ii.  pp.  230-244, 
Ch.  iv.  pp.  Mil    189;  Pollock  and  Maitland,  Hook  i. 


216  AMERICAN   JURISPRUDENCE.         §§  225,  226 

§  225.    Of  the  Unwritten  Law  of  the  States  of  the  American 
Union. 

The  Unwritten  Law  of  such  of  the  States  of  the  American 
Union  as  were  formed  out  of  the  original  thirteen  colonies,  or 
out  of  territory  where  no  legal  system  previously  prevailed, 
consists  in  part  of  so  much  of  the  English  law  as  has  been 
adopted  by  the  State  and  in  part  of  customs  which  have  since 
arisen  and  received  the  formal  sanction  of  its  courts.  In 
States  where  systems  other  than  the  English  law  were  preva- 
lent before  the  cession  of  the  territory  to  the  United  States, 
the  rules  embodied  in  those  systems,  and  the  sanctioned 
customs  since  developed,  constitute  the  Unwritten  Law. 
Whether  the  law  thus  derived  from  former  systems  was,  in 
those  systems,  written  or  unwritten  does  not  affect  its  char- 
acter in  ours  as  part  of  our  Unwritten  Law.  The  "Written 
Law  of  one  State  can  never  take  effect  as  written  law  in  any 
other  until  it  has  been  re-enacted  by  the  legislature  of  that 
other  State,  and  it  then  obtains  its  force  as  written  law  solely 
from  such  legislative  action  and  not  from  any  authority  in  the 
State  from  which  it  sprang.  Thus  English  statutes  passed 
before  the  Revolution,  and  now,  though  never  re-enacted  in 
this  country,  comprised  within  the  English  portion  of  our  law, 
are  as  to  us  unwritten  law  and  derive  their  validity  not  from 
the  act  of  Parliament  but  from  their  adoption  by  our  people 
and  their  sanction  by  our  courts. 


§  226.    Of  the  Unwritten  Law  of  the   United  States. 

It  is  sometimes  asserted  that  the  United  States,  as  a 
nation  has  no  Common  or  Unwritten  Law.  This  assertion 
must  be  taken  with  some  qualifications.  It  is  true  that  the 
United  States  originated  in  a  written  Constitution  from  whose 
express  grants  or  necessary  implications  all  its  powers  are 
derived.  It  is  also  true  that  not  having  existed  prior  to  the 
framing  of  its  Constitution  it  could,  at  that  date,  neither 
have  developed  for  itself  nor  borrowed  from  other  sources 
any  customary  or  unwritten  law.  It  is  also  true  that  having 
no  being  or  authority  except  by  virtue  of  its  written  Constitu- 


§  226  THE   UNWRITTEN    LAW.  217 

tion  it  can  have  no  recourse  to  the  Unwritten  Law  of  England 
in  order  to  extend  its  jurisdiction  beyond  the  limits  estab- 
lished in  its  Constitution,  nor  assert  rights,  prescribe  duties, 
prohibit  wrongs,  nor  provide  remedies,  however  well  known 
to  the  customary  law,  unless  these  acts  are  within  its  dele- 
gated powers.  It  is  also  true  that  in  every  State  in  the 
Union  questions  concerning  the  persons  and  property  within 
its  borders,  unless  involving  matters  of  a  national  character, 
are  determined  by  its  written  and  unwritten  laws,  and  that 
the  legislative  and  judicial  acts  of  the  United  States  in  refer- 
ence to  such  questions  are  governed  by  those  local  laws.  But 
tliis  exclusion  of  the  English  customary  law  as  an  original 
source  of  jurisdiction  to  the  United  States,  and  this  obliga- 
tion of  the  national  courts  and  legislature  to  respect  the 
common  law  of  the  respective  States,  by  no  means  banishes 
from  our  Federal  Jurisprudence  the  element  of  customary  or 
unwritten  law.  Since  the  adoption  of  the  Constitution  many 
customs  have  arisen  concerning  national  affairs  which  by 
judicial  sanction  have  been  elevated  into  law.  In  the  inter- 
pretation of  the  Constitution  itself  and  of  the  written  laws 
made  under  its  authority,  in  the  application  of  judicial  rem- 
edies, in  the  government  of  the  Territories  and  the  District 
of  Columbia,  in  the  administration  of  the  Patent,  Copyright, 
ami  Revenue  systems,  the  definitions,  principles,  and  pre- 
cepts of  the  English  customary  law  have  been  invoked,  ac- 
cepted, and  confirmed  as  indispensable  portions  of  our  national 
In  written  Law.  Moreover,  the  entire  body  of  International 
Law  is  of  the  same  character.  Its  rules  are  nowhere  speci- 
fically prescribed,  but  rest  upon  custom  ami  usage,  sanctioned 
by  the  consent  of  the  whole  family  of  nations  and  by  the 
wholesome  fear  of  armed  compulsion  in  case  of  disobedience. 

Read  1  Kent,  Lect.  xvi,  pp.  331-343  ;  Cooley,  C.  Law.  Ch.  vi, 
pp.  149-152. 

«  227.    Of   the    Expression  of   the  Unwritten    Law  in    Maxims. 
Definitions,  and  Judicial  Decisions. 
The  Unwritten  Law  is  verbally  expressed  in  maxims,  defi- 
nitions, and  judicial  decisions.     A  maxim    is   a    short   and, 


218  AMERICAN    JURISPRUDENCE.         §§  227,  228 

formal  statement  of  an  established  principle  of  law.  A 
definition  is  an  enumeration  of  the  distinguishing  character- 
istics of  some  person,  thing,  condition,  action,  or  default.  A 
judicial  decision  is  the  affirmance  or  recognition  of  a  new 
rule  of  law  or  the  application  of  a  known  rule  to  a  certain 
state  of  facts.  The  maxims  and  definitions,  though  occupy- 
ing an  inconsiderable  space  in  legal  literature,  are  among  the 
most  important  and  valuable  portions  of  our  Unwritten  Law. 
They  were  framed,  for  the  most  part,  in  an  age  when  writing 
was  comparatively  unknown,  and  when  all  knowledge  was 
communicated  orally  in  set  forms  of  speech  and  treasured  in 
the  memory  from  generation  to  generation.  For  this  pur- 
pose their  language  was  selected  with  the  greatest  care,  in- 
tended to  convey  exactly  and  with  all  its  limitations  the 
precise  rule  prescribed  or  attribute  defined ;  and  those  which 
have  been  added  to  them  in  subsequent  and  more  learned 
ages  have  emulated  and  attained  the  same  perfection.  To 
commit  these  to  memory  and  to  examine  the  conclusions 
which  have  been  deduced  from  them  by  the  courts  is  still 
one  of  the  most  profitable  tasks  engaged  in  by  ambitious 
students  of  the  law. 


§  228.    Of  the  Number  and  Nature  of  the  Maxims. 

The  number  of  the  maxims  is  indefinite,  but  nearly  three 
thousand  of  them  are  current  in  the  courts  and  in  the  modern 
literature  of  the  law.  A  few  of  them  express  the  primary 
principles  from  which  all  other  legal  rules,  written  or  un- 
written, are  derived.  A  larger  number  contain  secondary 
principles  deduced  immediately  from  the  primary,  and  a  still 
greater  multitude  present  the  rules  which  in  more  remote 
degrees  of  lineal  descent  are  related  to  the  first.  Of  the 
maxims  which  express  the  primary  principles  the  following 
are  the  chief:  (1)  Stilus  Populi  Supreme/,  Lex:  The  Safety  of 
the  People  is  the  Supreme  Law;  (2)  Sic  Utere  Tuo  ut  Alienum 
Non  Lcedas:  So  Use  your  own  PowTers  and  Property  as  not 
Unjustly  to  do   Injury   to  Another;    (3)  Actus   Dei  Nemini 


§  228  THE    UNWRITTEN    LAW.  219 

Facit  Injuriam:  The  Act  of  God  Injures  no  one;  that  is,  no 
legal  wrong  can  be  inflicted  by  events  in  which  human  agency 
does  not  co-operate  and  which  human  power  could  not  con- 
trol. In  these  three  maxims  reside  in  embryo  all  the  rules 
of  public  and  private  law.  As  an  example  of  the  mode  in 
which  the  secondary  principles  are  derived  from  these  the 
first  maxim  yields  the  following  deductions:  (1)  Rex  non 
potest  peccare :  The  King  can  do  no  wrong;  the  Sovereignty 
of  the  State  cannot  be  exercised  unjustly;  (2)  Rex  non  mori- 
tur:  The  King  never  dies;  the  Sovereignty  of  the  State  is 
perpetual  and  uninterrupted;  (3)  Rex  non  debet  esse  sub 
ho, nine  sed  sub  Deo  et  lege,  quia  lex  facit  regent:  The  King 
ought  not  to  be  subject  to  any  man  but  to  God  and  the  law, 
because  the  law  makes  the  King;  the  Sovereignty  of  the 
State  over  its  citizens  is  supreme  but  is  nevertheless  limited 
in  its  action  by  divine  and  human  laws:  (4)  Quando  jus 
Domini  Regis  et  Subditi  concurrunt  jus  Regis  proferri  debet : 
In  a  conflict  between  public  and  private  rights  the  public 
right  must  prevail.  Subordinate  deductions  from  the  first 
of  the  secondary  principles  —  Rex  non  potest  peccare  —  are 
these:  (1)  Actus  leyis  nemini  est  damnosus  ;  the  act  of  the 
law  never  inflicts  a  legal  wrong;  (2)  Actus  curia;  neminem 
gravabit :  The  act  of  a  court  shall  prejudice  no  man ;  (3)  Exe- 
cutio  juris  non  habet  injuriam  :  The  execution  of  the  law  tines 
not  work  a  legal  injury;  (4)  In  fictione  juris  semper  equitas 
existet :  Every  presumption  of  the  law  must  be  in  aid  of  jus- 
tice; (6)  Leges  posteriores  priores  contr arias  abrogant :  Former 
laws  inconsistent  with  later  laws  are  by  the  later  laws  re- 
pealed; (Gj  Communis  error  facit  jus:  A  custom  adopted  by 
the  people  in  contravention  of  law  must,  when  universally 
established,  be  recognized  as  law.  These  examples  illus- 
trate the  position  which  the  different  grades  of  maxims  oc- 
cupy in  the  logical  system  of  the  law  and  the  method  by 
which  courts  and  lawyers,  through  the  constant  application 
of  those  maxims  to  practical  affairs,  have  developed  a  i^w 
great  principles  into  numberless  specific  rules. (a) 
Head  Morgan.  Legal  Maxims. 

(a)  17  D.  254;  2  St  305 j  87  St.  552. 


220  AMERICAN   JURISPRUDENCE.  §  229 

§  229.    Of  the  Legal  Scope  of  the  Maxims. 

The  vastness  of  the  field  of  rights  and  obligations  which 
may  be  covered  by  deductions  from  a  single  primary  principle 
is  also  worthy  of  attention.  On  the  first  principle,  expressed 
in  the  maxim,  Salus  Populi  Suprema  Lex,  are  based  the  fol- 
lowing rights  of  the  State :  (1)  The  right  to  require  the  civil 
and  military  services  of  its  citizens;  (2)  The  right  to  place 
restraints  upon  the  locomotion,  speech,  and  acts  of  citizens; 
(3)  The  right  to  take  private  property  for  public  use;  (4) 
The  right  of  taxation ;  (5)  The  right  to  destroy  property  in 
public  emergencies;  (6)  The  right  to  protect  the  public 
health  or  trade  or  morals  at  any  sacrifice  of  individual  in- 
terest or  convenience;  (T)  The  right  to  control  the  education 
of  the  citizen;  (8)  The  right  to  control  divorce  and  marriage ; 
(9)  The  right  to  enact  and  enforce  pauper  laws;  (10)  The 
right  to  enact  and  enforce  criminal  laws;  (11)  The  right  to 
enact  and  enforce  industrial  laws;  (12)  The  right  to  protect 
religious  institutions;  (13)  The  right  to  delegate  its  powers 
to  cities,  boards  of  health,  and  other  public  and  quasi  public 
bodies;  (14)  The  right  to  protect  public  officers  in  the  dis- 
charge of  their  executive  and  judicial  duties;  (15)  The  right 
to  protect  private  citizens  in  the  enjoyment  of  their  rights 
against  the  State  and  one  another;  (16)  The  right  to  assert 
and  maintain  its  own  rights  against  other  States  at  whatever 
cost  to  the  persons  and  property  of  its  own  citizens.  Equally 
pregnant  with  legal  truth  and  rule  are  the  other  primary 
maxims,  of  which  the  second  is  the  foundation  of  all  laws 
which  govern  private  rights  and  duties,  while  the  third  de- 
fines the  limits  within  which  persons,  natural  or  artificial, 
are  responsible  for  legal  wrongs,  though  neither  perhaps  could 
yield  such  large  and  important  results;  and  to  a  lawyer  or  a 
judge,  gifted  with  sufficient  logical  ability  and  an  adequate 
familiarity  with  the  facts  in  any  controverted  case,  the  knowl- 
edge of  these  primary  maxims  and  the  principles  which  they 
embody  would  afford  a  guide  by  which  in  most  instances  cor- 
rect legal  conclusions  might  be  reached  without  the  explo- 
ration of  innumerable  reports  and  treatises. 
Read  Broom,  Legal  Maxims. 


§  230  THE   UNWRITTEN    LAW.  221 

§  230.    Of  the  Definitions  of  the  Unwritten  Law. 

The  definitions  of  the  Unwritten  Law  are  prescriptive  as 
distinguished  from  descriptive  definitions.  A  descriptive  defi- 
nition is  an  attempt,  more  or  less  successful,  to  portray  in 
words  the  characteristics  of  some  actual  or  possible  object. 
It  contemplates  the  object  as  subsisting  independently  of  the 
definition,  and  its  correctness  is  measured  by  its  correspond- 
ence with  the  attributes  of  the  object  as  they  really  exist.! 
Consequently  the  definition  may  be  perfect  or  imperfect,  and 
may  lead  or  mislead  the  mind  of  the  investigator.  A  pre- 
scriptive definition  is  one  which  of  itself  determines  the 
characteristics  of  the  object,  so  that  the  object  cannot  be 
the  object  defined  unless  it  corresponds  with  the  terms  of  the 
definition.  Such  a  definition  is  necessarily  perfect  and  can 
never  mislead.  It  is  the  norm  or  standard  of  being  for  the 
object.  It  is  a  rule  prescribing  conditions  upon  compliance 
with  which  alone  the  object  can  exist.  It  is,  therefore,  a 
law,  which  a  mere  descriptive  definition  never  can  be,  not 
only  establishing  a  criterion  by  which  present  objects  may  be 
judged,  but  fixing  in  advance  the  nature  and  attributes  of 
objects  yet  to  be.  Of  this  accurate  and  authoritative  char- 
acter are  the  definitions  of  the  Unwritten  Law.  The  defini- 
tions of  an  artificial  person,  of  an  heir-at-law,  of  an  estate  in 
remainder,  of  the  crime  of  burglary,  for  example,  are  com- 
pact and  comprehensive  bodies  of  law.  capable  like  the  max- 
ims of  being  expanded  into  voluminous  treatises  which  after 
all  would  contain  nothing  that  was  not  expressed  or  necessa- 
rily implied  by  the  language  of  the  definition  itself.  More- 
over, these  definitions  of  the  Unwritten  Law  have  by  long 
usage  and  general  acceptance  become  inseparably  connected 
with  the  technical  names  of  the  defined  objects,  so  that  when- 
ever in  any  rule  of  law,  written  or  unwritten,  or  in  any  legal 
document,  the  name  is  used  the  definition  is  adopted  with  the 
name.  Thus  where  a  statute  limits  the  powers  of  corpora- 
tions, or  provides  a  punishment  for  the  offence  of  larceny, 
every  organization  which  falls  within  the  legal  definition 
of  a  corporation  is  affected  by  the  limitation;  only  those 
offences  which  precisely  correspond  to  the  legal  definition  of 


'222  AMERICAN    JURISPRUDENCE.  §  281 

a  larceny  are  subject  to  the  penalty.  So  where  a  will  de- 
vises an  "estate  in  common,"  or  a  contract  creates  a  "part- 
nership" relation,  the  definition  which  the  law  attaches  to 
the  phrase  "estate  in  common  "  in  the  one  case  or  to  the  word 
'•partnership"  in  the  other  is  incorporated  into  the  devise  or 
contract,  and  constitutes  the  rule  of  law  by  which  its  in- 
terpretation and  application  are  controlled.  To  frame  a  stat- 
ute or  to  construct  a  legal  document  without  employing  such 
defined  names  and  phrases  is  almost  impossible;  to  employ 
them  without  a  thorough  understanding  of  their  legal  mean- 
ing is  extremelv  dangerous. 


§  231     Of  Judicial  Decisions. 

A  judicial  decision  is  the  adjudication  of  a  competent 
court,  in  a  case  within  its  jurisdiction,  upon  some  contro- 
verted rule  of  law.  The  controversy  concerning  the  legal 
rule  may  relate  to  its  existence  or  to  its  interpretation;  a 
controversy  concerning  its  application  to  the  state  of  facts 
involved  in  the  litigation  being,  as  to  the  rule  itself,  only 
another  form  of  the  question  whether  it  exists  and  what  it 
signifies.  Sometimes  a  judicial  decision  expressly  states  the 
rule  or  gives  its  formal  explanation;  sometimes  it  merely 
renders  judgment  in  favor  of  one  of  the  contending  parties, 
leaving  the  rule  and  its  interpretation  to  be  inferred  from 
the  conclusions  to  which  it  has  led.  In  ancient  times  the 
latter  method  almost  universally  prevailed;  until  the  inven- 
tion of  printing,  and  the  general  cultivation  of  the  art  of 
writing,  the  decisions  of  the  courts  being  as  short  as  possible 
and  entered  in  their  records  in  the  most  abbreviated  form.  In 
modern  times,  in  all  the  higher  courts,  it  has  become  the 
custom  for  the  judges  to  prepare  written  decisions,  often  set- 
ting forth  at  great  length  the  logical  processes  by  which  they 
attained  to  their  conclusions,  the  rules  by  which  they  were 
governed  and  the  principles  which  underlie  the  rflles,  stating, 
explaining,  and  qualifying  them  far  beyond  the  actual  re- 
quirements of  the  case  at  bar.  Many  of  these  decisions  are 
among  the  most  excellent  of  all  the  expositions  of  the  Un- 


§  231  THE    UNWRITTEN    LAW.  223 

written  Law,  and  are  accepted  in  the  States  whose  laws  they 
elucidate,  and  in  other  States  whose  laws  are  similar  to 
theirs,  as  of  the  highest  value,  both  by  subsequent  tribu- 
nals and  by  the  community  at  large.  Judicial  decisions  do 
not,  however,  have  the  force  of  legislative  acts,  either  as 
making  or  as  declaring  law,  except  within  the  State  by 
whose  courts  they  are  delivered,  and  even  then  only  when 
emanating  from  courts  of  superior  jurisdiction,  and  upon 
points  necessarily  involved  in  the  controversy  before  them; 
nor  do  they  ever  become  final  in  the  sense  that  upon  further 
research  or  consideration  they  could  not  be  modified  or  over- 
ruled. But  conflicting  decisions  in  other  States  do  not 
weaken  their  authority  in  their  own.  Such  decisions  show 
either  that  the  legal  institutions  and  traditions  of  those  other 
States  are  different  from  theirs,  or,  possibly,  that  the  legal 
questions  determined  have  not  yet  been  so  far  examined  as 
to  be  freed  from  all  equivocation  and  capable  of  but  a  single 
answer.  In  either  case  the  judicial  legislation  of  each  State 
must  stand  unchallenged  until  it  chooses  to  amend  it,  and  as 
to  that  State  the  decisions  of  its  courts  must  be  regarded  as 
the  true  statement  of  its  Unwritten  Law.  At  the  same  time 
judicial  legislation  is  the  one  flexible  and  progressive  agency 
through  which  the  Unwritten  Law  adapts  itself  to  the  de- 
mands of  the  advancing  age.  Maxims  and  definitions  long 
since  became  crystallized  in  language  and  interpretation  be- 
yond the  reach  of  change.  It  is  in  the  constant  modification 
of  the  Unwritten  Law  by  judicial  decisions  —  adding,  cur- 
tailing, altering,  explaining,  affirming  their  former  utterances 
where  neither  reason  nor  justice  demand  a  change,  departing 
from  them  without  hesitation  where  a  clearer  understanding 
of  the  subject  or  a  variation  in  conditions  renders  the  old  rule 
inexpedient  —  that  the  development  of  the  Unwritten  Law 
consists,  without  which  the  great  body  of  its  practical  rules 
would  soon  become  but  an  effete  tradition,  an  historical  phe- 
nomenon, left  far  behind  us  in  the  rapid  march  of  social  evo- 
lution, only  its  fundamental  principles  remaining  to  guide 
the  State  in  the  formation  of  its  Written  Laws. 
Read  Pollock,  Lect.  be. 


224  AMERICAN    JURISPRUDENCE.         §§  232,  233 

§  232.    Of  the  Treatises  and  Reports. 

Maxims,  definitions,  and  judicial  decisions  are  preserved 
and  accessible  in  the  Treatises  of  jurists  and  in  the  Reports 
of  cases.  Each  of  these  divisions  of  our  legal  literature  em- 
braces all  these  forms  of  the  Unwritten  Law.  The  treatises 
discuss  the  decisions  of  the  courts  as  well  as  the  fixed  and 
fundamental  rules  of  law;  the  courts  in  their  decisions  em- 
ploy, explain,  and  affirm  the  maxims  and  the  definitions. 
Thus  the  reports  and  treatises  cannot  be  distinguished  from 
each  other  by  their  subject-matter,  but  only  by  its  mode  of 
presentation,  each  mode  appropriate  to  that  class  of  students 
who  find  in  it  the  readiest  avenue  to  knowledge.  Histori- 
cally, the  appearance  of  the  treatise  preceded  that  of  the 
report.  Numerically,  the  report  now  far  outstrips  the  treat- 
ise and  forms  the  major  part  of  all  our  libraries. 


§  233.    Of  the  Principal  Treatises  before  the  Revolution. 

The  earliest  known  treatise  upon  our  Unwritten  Law  was 
the  Dom-Boc,  or  Liber-  Judicialis,  of  King  Alfred,  prepared 
about  a.  d.  878.  It  contained  a  compilation  of  all  the  laws 
and  customs  of  his  kingdom,  and  acquired  for  him  the  name 
of  Conditor  Legum  Anglicanarum.  It  long  since  disappeared, 
and  that  it  ever  existed  is. now  sometimes  denied.  Another 
lost  book  is  the  Laws  of  Edward  the  Confessor,  a  reproduc- 
tion of  King  Alfred's  Dom-Boc,  with  additions,  about  A.  d. 
1065.  The  existence  of  this  book  also  is  disputed,  although 
a  body  of  laws  under  that  name  was  recognized  by  the  Con- 
queror and  his  successors  as  the  common  law  and  folckright 
of  the  English  people.  The  Domesday  Book  of  William  I., 
in  a.  d.  1080,  consisting  of  an  enumeration  of  the  land-hold- 
ings and  tenants  of  his  newly  acquired  realm,  contains  also 
the  law  of  tenures  by  which  such  lands  were  held.  These 
three  treatises  were  the  work  of  kings;  but  during  the  cen- 
tury which  followed  the  Conquest  legal  institutions  became 
settled,  courts  were  established,  formal  methods  of  procedure 
were  adopted,  the  English  bench  and  bar  became  an  influen- 
tial body  in  the  kingdom,  the  cultivation  of  legal  learning 


§  233  THE   UNWRITTEN   LAW.  225 

increased,  and  the  demand  for  legal  treatises  inspired  private 
authors  to  produce  them.  In  a.  d.  1170  appeared  the  Dia- 
logus  de  Scaccario,  or  Dialogue  on  the  Exchequer,  a  treatise 
in  detail  on  the  machinery  of  government  and  a  manual  of 
administrative  and  fiscal  law,  supposed  to  have  been  written 
by  Richard  Fitz-Nigel,  Bishop  of  London  and  Treasurer  of 
the  realm.  By  order  of  King  Henry  II.,  Ranulph  de  Glan- 
ville,  Chief  Justiciar  of  England,  who  died  at  the  siege  of 
Acre  in  a.  d.  1190,  composed  his  famous  Tractatus  de  Legibvs 
et  Consuetudinibus  Anglice  or  Treatise  on  the  Laws  and  Cus- 
toms of  England,  the  most  ancient  book  extant  upon  the  laws 
of  England.  It  treats  the  law  from  the  standpoint  of  actions 
for  wrongs,  in  fourteen  books,  with  forms  of  papers  and  pro- 
ceedings. About  a.  d.  1244  Henry  Bracton,  an  LL.D.  of 
Oxford,  said  to  have  been  a  judge  and  chancellor  of  Exeter 
Cathedral,  wrote  his  Tractatus  de  Legibus  et  Consuetudinibus 
Anglice,  a  book  of  great  reputation  and  merit  which  has  been 
called  "the  crown  and  flower  of  English  mediaeval  jurispru- 
dence." In  it  the  English  law  is  illuminated  by  an  infusion 
of  Roman  law,  and  illustrated  by  more  than  five  hundred 
decisions.  Two  of  its  five  divisions  are  devoted  to  personal 
and  property  rights;  the  remaining  three  to  public  and  pri- 
vate wrongs  and  remedies.  Fleta,  written  about  a.  d.  1287 
by  an  unknown  author,  who  gave  this  title  to  his  work  be- 
cause it  was  composed  in  the  Fleet  prison  in  which  he  was 
then  confined,  is  a  commentary  upon  English  law  and  ap- 
pears to  be  a  compendium  of  the  work  of  Bracton  with  such 
additions  to  the  law  as  had  arisen  since  his  time.  Another 
brief  compendium  of  Bracton,  under  the  name  of  Britton,  of 
about  the  same  period,  and  written  in  the  Norman  •French, 
which  was  then  the  technical  language  of  the  law,  purports 
to  have  been  composed  under  the  immediate  supervision  oi 
King  Edward  I.  This  book  is  of  especial  interest  since  it 
immediately  preceded  the  first  published  reports  of  cases  — 
the  Year  Books  —  in  which  the  same  language  is  employed. 
Another  book  in  Norman-French,  of  the  same  epoch,  is  the 
Mirrour  of  Justices,  which  professed  to  be  "a  summary  of  tin- 
law  for  the  common  people/*  and  in  which   Lord   Coke  de- 

15 


22  ')  AMERICAN   JURISPRUDENCE.  §  233 

clared  that  "you  may  perfectly  discern  the  whole  body  of  the 
common  law  of  England."  Its  authorship  is  imputed  to 
Andrew  Home,  Chamberlain  of  London,  but  it  is  doubted 
whether  it  was  not  originally  written  before  the  Conquest 
and  expanded  and  corrected  by  subsequent  editors.  It  treats 
of  all  branches  of  law,  civil  and  criminal,  but  many  of  its 
historical  assertions  are  regarded  by  the  most  recent  critics 
as  unreliable.  An  interval  of  nearly  two  centuries  then 
elapsed,  during  which  the  foregoing  treatises  and  the  cases 
published  in  the  Year  Books  seem  to  have  met  the  require- 
ments of  the  legal  profession  and  the  courts,  although  the 
law  itself  steadily  developed  in  scope  and  precision.  At 
length,  in  a.d.  1471,  Sir  John  Fortescue,  the  Chief  Justice 
of  King's  Bench  and  Lord  Chancellor  of  England,  being  in 
exile  in  France  with  the  Lancastrian  party,  wrote  for  the  use 
of  young  Prince  Edward  the  treatise  De  Lmidibus  Legum 
Anglice,  or  of  the  Praises  of  the  Laws  of  England,  in  which 
he  sets  before  the  future  sovereign  the  excellencies  of  the 
common  law  of  England  as  compared  with  that  of  Rome  and 
other  countries.  It  is  our  first  book  on  Comparative  Juris- 
prudence and  seems  to  have  been  intended  as  an  introduction 
to  a  larger  work  on  the  whole  body  of  the  law  which  never 
was  completed.  Littleton's  Tenures,  a  treatise  on  the  law 
of  Real  Property  and  the  foundation  of  the  works  of  Coke 
and  Blackstone,  written  by  Thomas  de  Littleton,  a  judge  of 
the  Common  Pleas  and  the  most  distinguished  lawyer  of  the 
reign  of  Edward  IV.,  for  the  instruction  of  his  son,  was 
printed  in  a.  d.  1481.  It  soon  became  the  text-book  of  all 
students  of  the  law,  and  the  statements  and  definitions  of  its 
author  were  accepted  as  of  the  same  authority  as  a  judgment 
of  the  courts.  Under  the  reign  of  Henry  VIII.  the  principal 
law-writer  was  Anthony  Fitzherbert,  also  a  judge  of  the  court 
of  Common  Pleas.  His  first  work,  published  a.  d.  1514,  was 
a  "Grand  Abridgement  of  the  Law,"  a  work  "of  singular 
learning  and  utility."  His  second  and  more,  famous  one  was 
the  Natura  Brevlum,  or  Nature  of  Writs,  printed  in  a.  d. 
1534,  a  treatise  on  the  different  writs  by  which  actions  could 
1)3  commenced  and  the  grounds  on  which  they  should  be  is- 


§  233  THE    UNWRITTEN    LAW.  227 

sued.  It  is  a  discussion  of  the  law  from  the  point  of  view 
of  wrongs  and  remedies,  and  was  a  book  of  very  high  author- 
ity. Doctor  and  Student,  consisting  of  two  dialogues  con- 
cerning the  grounds  of  our  law  and  tracing  its  rules  to  the 
dictates  of  reason  and  conscience,  was  a  popular  work  of  the 
same  period  by  an  author  bearing  the  name  of  St.  Germain, 
but  of  whose  personality  little  is  now  known.  In  the  same 
reign  appeared  the  Register  of  Writs,  printed  in  a.  d.  1531, 
a  collection  of  the  authorized  forms  of  writs.  These  forms 
were  very  early  settled  by  the  courts,  and  the  matter  in  this 
Register  is  the  oldest  formulated  matter  in  our  law.  It  con- 
tains writs  adapted  to  every  species  of  legal  wrong  and  to 
every  step  in  judicial  procedure.  Great  learning  was  ex- 
pended in  framing  these  writs.  The}-  were  regarded  as  "the 
measure  of  legal  rights  "  and  the  Register  itself  as  a  manual 
of  the  greatest  authority.  The  period  of  seventy-eight  years 
between  the  reign  of  Henry  VIII.  and  that  of  Charles  the 
First  witnessed  many  changes  in  the  social  and  political  con- 
ditions of  the  English  people  and  many  corresponding  altera- 
tions in  the  law,  forerunners  of  the  disappearance  of  the 
Norman  feudal  system  under  Cromwell  and  the  second 
Charles,  and  the  substitution  of  the  sovereignty  of  commerce 
for  that  of  arms.  The  connecting  link  between  the  older 
legal  institutions  and  the  new  is  the  Institutes  of  Sir  Edward 
Coke,  a  work  which  is  the  foundation  of  the  literature  of  our 
modern  law.  Lord  Coke  was  born  in  a.  d.  1551,  and  died 
a.  i>.  1634.  He  was  law  lecturer  of  the  Inner  Temple  and 
Chief  Justice  first  of  Common  Pleas  and  afterward  of  King's 
Bench.  His  Institutes  were  published  in  a.  i>.  1628.  The 
First  Institute  is  a  Commentary  on  Littleton's  Tenures. 
The  Second  treats  of  the  Statutes  from  Magna  Charta  till  the 
reign  of  Henry  VIII.  with  explanations  drawn  from  the  de- 
cisions of  the  courts.  The  Third  is  on  the  Fleas  of  the 
Crown,  or  Criminal  Law.  The  Fourth  discusses  the  Juris- 
diction of  tlic  Courts.  Coke's  Institutes  still  occupy  a  high 
position  among  the  treatises  on  English  law.  especially  the 
First  Institute,  which  has  been  often  published  as  a  separate 
work  by  various  editors  with  copious  notes  and  explanations. 


228  AMERICAN   JURISPRUDENCE.  §  233 

Sir  Matthew  Hale,  a  judge  of  Cromwell's  reign  in  a.  d.  1G53, 
and  of  whom  it  was  said  that  "  what  was  not  known  by  him 
was  not  known  by  am*  person,''  and  "that  what  he  knew  he 
knew  better  than  any  other  person,"  produced,  among  a  vari- 
ety of  works,  a  History  of  the  Law,  and  an  Analysis  of  the 
Civil  Fart  of  our  Law.  The  latter  seems  to  have  been  in- 
tended as  a  refutation  of  the  critics  of  the  common  law  who 
complained  that  it  was  not  a  rational  science  "  by  reason  of 
the  indigestiveness  of  it  and  the  multiplicity  of  the  cases  in 
it."  This  analysis  supplied  Sir  William  Blackstone  with 
the  plan  of  his  Commentaries,  and  was  probably  the  first 
attempt  to  give  a  logical  harmony  and  sequence  to  the  Un- 
written Law.  One  hundred  years  afterwards,  in  a.  d.  1753, 
Blackstone,  at  the  age  of  thirty,  began  his  lectures  at  Oxford 
on  the  common  law,  which  were  published  in  a.  d.  1768 
under  the  name  of  Blackstone's  Commentaries.  These  Com- 
mentaries reproduce,  explain,  and  supplement  the  works  of 
Hale,  Coke,  Bracton,  and  Glanville  and  all  other  previous 
writers  on  the  English  law.  Appearing  on  the  eve  of  our 
Revolution  they  represent  the  laws  of  England  as  they  stood 
when  the  separation  of  the  colonies  from  the  mother  country 
made  them  sovereign  States,  and  when  they  adopted  as  their 
own  so  much  of  that  law  as  they  deemed  suitable  to  their 
condition.  Blackstone  thus  contains  the  English  portion  of 
our  law,  of  course  with  much  beside  that  is  not  law  for  us, 
and  therefore  always  has  been  and  must  always  be  a  treatise 
of  great  practical  importance  to  the  American  Bar.  The 
earlier  lawyers  of  the  United  States  acquired  their  learning 
from  its  pages,  and  no  other  book  has  yet  appeared  which 
ventures  to  compete  with  it  as  an  exposition  of  that  part  of 
our  Unwritten  Law.  With  Blackstone's  Commentaries  this 
description  of  our  ante-Revolutionary  legal  treatises  may 
close,  although  from  it  have  been  omitted  a  number  of  abridg- 
ments, digests,  and  text-books  upon  special  topics  which  once 
earned  and  were  worthy  of  their  fame. 

Read  1  Bl.  Com.,  p.  72  ;  1  Kent,  Lect.  xxii,  pp.  499-514  ;  Ram, 
Leg.  J.  Ch.  xii ;  Reeve,  Ch.  i,  pp.  209-224 ;  Clark,  Book 
ii,  Ch.  vii-x. 


§  234  THE   UNWRITTEN    LAW.  229 

§  234.    Of  the  Principal  Reports  before  the  Revolution. 

The  Year  Books  contain  the  earliest  published  reports  of 
the  judicial  decisions  of  the  English  courts.  They  were  com- 
menced by  royal  authority  in  a.  d.  1324  under  the  reign  of 
Edward  II.,  and  continued  without  interruption  for  about 
two  hundred  years,  when  in  the  reign  of  Henry  VIII.  through 
motives  of  a  false  economy  they  were  suspended.  Private 
commercial  enterprise  or  literary  ambition  then  assumed  the 
task,  and  until  the  reign  of  Queen  Victoria  carried  it  forward 
with  varying  success.  The  names  of  the  collectors  and  pub- 
lishers of  cases  decided  in  the  courts  of  common  law  and 
equity  during  these  three  centuries  constitute  a  formidable 
array,  among  them  being  judges  of  the  highest  eminence  who 
thus  preserved  their  own  decisions,  and  their  work  was  some- 
times well  and  sometimes  ill  performed.  The  principal  com- 
mon law  reporters  before  and  during  the  epoch  of  the 
Revolution  were  Dyer  (1513-1582),  Plowden  (1550-1580),  Coke 
(1572-1616),  Hobart  (1603-1625),  Croke  (1582-1641),  Yelver- 
ton  (1603-1613),  Saunders  (1000-107:; ».  Yaughan  (1665-1674), 
T.  Jones  (1667-1685),  Levinz  (1660-1697), Palmer  (1619-102*.!), 
Pollexfen  (1669-1685),  W.  Jones  (1620-1641),  Lord  Raymond 
(1694-1734),  Salkeld  (168<.)-1712),  Strange  (1716-1 749),  Corny  ns 
(1695-1741),  Willes  (1737-1760),  Wilson  (1742-1774),  Bur- 
row  (1757-1771),  Cowper  (1774-1778),  Douglass  (1 778-1 7N4), 
Durnford  and  East  (1785-180.0),  Enst  (1801-1812),  Henry 
Blackstone  (1788-1796),  William  Blackstone  (1746-17M)), 
Bosanquet  and  Puller  (1796-1807).  The  reported  decisions 
of  the  courts  of  equity  for  the  same  period  are  found  in 
Chancery  Cases  (1557-1600),  Dickens  (15.")'.  1-17'. IS).  Vernon 
(1081-1720),  Precedents  in  Chancery  (1689-1723),  Peere 
Williams  (1695-1736),  Mosely  (1726-1731),  Talbot  (1734- 
1738),  Vesey  and  Atkins  (1747-1750),  Ambler  (1737-1784), 
Eden  (1757-1767),  Brown  (1778-1794),  Cox  (1783-1796), 
Vesey  2d  (1789-1796).  The  eases  in  these  Reports  are  of 
authority  in  this  country  on  such  rules  of  the  English  law  as 
have  become  incorporated  into  our  own. 

Read  1  01.  Com.,  pp.  72,73;   1  Kent.  Lect.  xxi.  pp.   (70-497; 
Ram,  Leg.  .1.  Ch.  xiii. 


230  AMERICAN   JURISPRUDENCE.         §§  235,  236 

§  235.    Of  Treatises  and  Reports    in    England    and   the   United 
States  since  the  Revolution. 

Of  the  reports  and  treatises  published  in  this  country  and 
in  England  since  the  Revolution,  and  of  the  minor  treatises 
which  ever  since  the  invention  of  printing  have  been  pre- 
pared upon  subordinate  topics  of  the  Unwritten  Law,  it 
would  be  impossible  here  to  speak  in  detail.  Such  of  them  as 
can  be  of  practical  service  to  him  the  student  will  find  readily 
accessible  in  legal  libraries,  and  his  selection  of  them  will  be 
determined  by  the  demands  of  business  and  the  customs  of 
his  local  bar.  But  so  great  is  their  total  number,  and  among 
multitudes  of  an  inferior  character  there  are  so  many  of  dis- 
tinguished merit,  that  none  of  them  enjoy  such  a  predomi- 
nance over  the  rest  as  to  rival  in  renown  the  noted  treatises  and 
reports  of  former  generations.  Whatever  learning  the  student 
may  derive  from  later  works  he  should  not  be  contented  to  be 
ignorant  of  those  rich  storehouses  of  the  Unwritten  Law  to 
which  his  attention  has  just  been  directed,  and  in  which  its 
principles  and  precepts  are  treated  with  a  reverence  and  en- 
thusiasm worthy  of  the  source  from  whence  it  sprang.  For  it 
is  the  Unwritten  Law  of  which  the  ' '  judicious  "  Hooker  said, 
"  whose  seat  is  in  the  bosom  of  God,  whose  voice  is  the 
harmony  of  the  world  ;  "  and  to  which  Coke  refers  when  he 
declares  in  the  beginning  of  his  Institutes,  that  "reason  is 
the  life  of  the  law,  .  .  .  which  hath  been  so  fined  and  re- 
fined by  an  infinite  number  of  grave  and  learned  men,  and 
brought  to  such  perfection  by  long  experience,  that  no  man  or 
group  of  men  out  of  their  own  private  reason  can  ever  be 
wiser  than  the  law." 

Read  1  Kent,  Lect.  xix,  pp.  442-444  ;  Dillon,  Lect.  iv,  pp.  134- 
138. 


/ 


section  ii.  y 

OF    THE   WRITTEN    LAW. 


§  236.    Of  the   Nature  of  the  Written  Law. 

The  Written  Law  is  a  rule  of  conduct  prescribed  in  a  specific 
form  of  words  by  the  legislative  authority  of  the  State.     In 


§  237  THE    WRITTEN   LAW.  231 

the  Unwritten  Law  the  essence  of  the  rule  is  the  idea  or 
mental  concept,  or  the  ethical  or  political  principle,  without 
reference  to  the  words  in  which  it  is  expressed,  and  this  may 
be  stated  in  any  language  which  will  adequately  convey  the 
idea.  But  in  the  Written  Law  both  words  and  concept  are  of 
the  essence  of  the  rule,  and  no  other  form  of  words,  howso- 
ever accurately  it  may  represent  the  same  idea,  can  be  its  legal 
equivalent  or  partake  of  its  authority.  The  adoption  into 
the  Written  Law  of  a  rule  previously  unwritten,  while  it  may 
render  the  rule  more  precise  and  definitely  ascertainable,  thus 
tends  to  limit  its  scope,  impair  its  flexibility,  and  narrow  its 
application,  unless  it  be  a  rule  which  can  be  adequately  ex- 
pressed by  the  words  selected  to  convey  it,  and  by  those  words 
alone. 

Read  Holland,  ch.  v,  pp.  66,  67;  Austin,  Lect.  xxxvii,  pp.  620- 
623. 


§  237.    Of  the  Origin  of  the  Written  Law. 

Written  Law  has  its  origin,  like  the  Unwritten  Law,  in 
universal  principles  of  reason  and  justice,  and  in  usages  whose 
utility  has  been  demonstrated  by  experience.  In  most  in- 
stances, probably,  the  rules  of  the  Written  Law  have,  before 
their  formal  enactment  by  the  legislative  body,  become  already 
established  among  the  precepts  of  the  Unwritten  Law.  Sel- 
dom has  it  occurred  that  an  entirely  new  idea  or  principle  or 
custom  has  been  adopted  by  the  State  until  it  has  been  tested 
by  the  people,  or  prescribed  in  words  before  it  was  accepted 
and  obeyed  in  act ;  and  where  such  experiments  have  been 
tried  the  errors  of  the  lawgiver  in  misinterpreting  social  con- 
ditions or  misjudging  social  needs  have  only  too  often  affirmed 
the  folly  of  one  who  would  be  wiser  than  the  Unwritten  Law. 
The  fabric  of  the  Written  Law  is  built  out  of  the  materials 
and  on  the  foundation  of  the  Unwritten  Law,  as  temples  and 
palaces  and  dwellings  are  framed  out  of  the  substance  and  on 
the  surface  of  the  earth,  both  special  adaptations  of  special 
portions  of  the  original  mass  to  special  purposes  but  never 
wholly  separated  from  it  and  returning  into  it  whenever  the 


232  AMERICAN   JURISPRUDENCE.         §§  238,  239 

special  form  it  has  received  may  be  dissolved.  This  relation 
of  the  Written  Law  to  the  Unwritten  Law  underlies  many  of 
the  rules  by  which  the  validity,  interpretation,  and  effect  of 
Written  Law  are  governed. 


§  238.    Of  the  Subordination  of  the  Written  Law  to  the  Unwrit- 
ten Law. 

Moreover,  the  Written  Law  is  the  servitor  and  subordinate 
of  the  Unwritten  Law.  It  grows  out  of  the  Unwritten  Law 
by  a  natural  process  of  development,  but  it  does  not  absorb 
the  energy,  nor  exhaust  the  materials,  nor  fulfil  the  functions 
of  the  Unwritten  Law.  It  is  conceivable  that  an  upright  and 
free  people  in  the  highest  stage  of  civilization,  and  with  the 
widest  degree  of  commercial  and  political  prosperity,  might  be 
directed  b}-  the  rules  of  the  Unwritten  Law  without  a  single 
formal  legislative  mandate  ;  but  it  is  not  conceivable  that  any 
legislative  body  could  so  foresee  the  needs  of  such  a  people, 
and  so  prejudge  the  availability  of  measures,  as  to  provide 
them  in  advance  with  a  perfect  system  of  written  laws.  That 
Written  Law  can  ever  take  the  place  of  the  Unwritten  Law  in 
the  life  of  a  progressive  people  is  thus  an  idle  dream  ;  a  dream 
as  idle  as  that  the  enterprise  of  such  a  people  will  pause  and 
wait  for  legal  guidance  before  it  opens  for  itself  new  pathways 
and  walls  them  in  with  usages  and  customs,  by  and  by,  per- 
haps, to  be  retrodden  by  the  lagging  footsteps  of  the  Written 
Law.  The  Written  Law  is  necessarily  incidental  to  the  Un- 
written. It  can  define,  explain,  enlarge,  restrict,  apply  the 
unwritten  rules,  but  it  can  never  supersede  them  except  in  a 
condition  where  the  King  becomes  the  State,  his  personal  will 
the  law,  and  the  people  passive  subjects  of  his  imperial 
decrees,  (a) 

Read  (a)  94  U.  S.  113. 


ii  239     Of  the  Divisions  of  the  Written  Law. 

The  Written  Law  of  modern   States  is  divisible  into  four 
classes  :  (1)  Constitutions ;  (2)  Treaties ;  (3)   Codes  ;   and  (4) 


§  240  THE   WRITTEN    LAW  I    CONSTITUTIONS.  233 

Statutes.  A  Constitution  is  the  organic  law  of  the  State, 
defining  its  political  powers,  its  form  and  method  of  govern- 
ment, and  its  public  rights  and  duties.  A  Treaty  is  a  solemn 
compact  made  between  two  or  more  independent  States.  A 
Code  is  a  formal  statement  of  the  entire  law  in  all  its  details. 
A  Statute  is  the  formal  statement  of  some  specific  rule  of  law 
governing  some  particular  act  or  person.  A  Constitution,  it  is 
true,  may  be  either  written  or  unwritten  ;  and  when  unwritten 
it  may  be  composed  in  part  of  documents  determining  politi- 
cal conditions,  and  in  part  of  maxims,  usages,  and  principles, 
in  accordance  with  which  the  powers  of  sovereignty  are  habit- 
ually exercised.  A  Treaty  also  may  be  wholly  or  in  part  un- 
written. Of  these  what  has  been  said  of  the  Unwritten  Law 
suffices;  here  only  written  Treaties  and  Constitutions  are  to  be 
discussed. 

Read  Jameson,  §§  74-84;  Cooley,  C.  Law,  Ch.  ii,  §§  22,  23. 


Article  I. 

Of  Constitutions. 

§  240.    Of  the  Nature  of  Constitutions. 

A  written  Constitution  is  the  legislative  act  of  the  entire 
people,  creating  or  modifying  the  political  organization  of  the 
State  to  which  they  now  or  are  hereafter  to  belong.  A  people, 
as  the  term  is  here  employed,  is  not  an  indiscriminate  multi- 
tude, but  a  group  of  persons  cohering  in  a  political  society, 
albeit  an  imperfect  one,  and  mutually  recognizing  one  another 
as  entitled  to  participate  in  its  control,  (a)  Where  such  a  peo- 
ple adopt  a  Constitution  which  creates  a  State,  the  Constitution 
is  a  formal  grant  of  powers  and  the  State  has  no  authority 
beyond  that  which  is  expressed  or  necessarily  implied  in  the 
Constitution  which  creates  it.  Of  this  character  is  the  Federal 
Constitution  by  which  the  American  States  became  united  in 
a  nation.  But  where  an  existing  State  modifies  its  ancient 
Constitution  or  prepares  a  new  one  all  powers  with  which  it 
had  been  previously  endowed  remain,  except  so  far  as  they 
have  been  expressly  or  by  necessary  implication  abolished  or 


234  AMERICAN   JURISPRUDENCE.  §§  2-11,  242 

restrained.  Such  a  Constitution  is  a  limitation  as  distin- 
guished from  a  grant  of  powers,  and  of  this  character  are  the 
Constitutions  of  the  several  States  of  which  the  American 
Union  is  composed. 

Read  Jameson,  §§  63-69,  85-87;   Cooley,  C.  Law,  Ch.  ii,  pp. 
26-29. 
(a)  97  D.  248. 


§  241.  Of  the  Preparation  and  Adoption  of  a  Written  Constitu- 
tion. 
A  people  may  prepare  and  adopt  a  Constitution  in  an 
assembly  of  which  all  are  acting  members.  But  in  a  political 
society  of  considerable  numbers  this  would  be  impracticable. 
Hence  it  becomes  necessary,  in  all  ordinary  cases,  to  impose 
this  duty  upon  a  representative  body  called  a  Constitutional 
Convention,  selected  and  commissioned  by  the  people  for  this 
special  purpose,  (a)  To  this  convention  power  may  be  ex- 
pressly given  to  adopt  as  well  as  frame  the  Constitution,  and 
then  its  action  becomes  conclusive  on  the  State,  (b)  In  the 
absence  of  such  power  the  result  of  its  labors  must  be  sub- 
mitted to  the  people  by  whose  vote  alone  the  proposed  Consti- 
tution can  be  made  a  law. 

Read  Jameson,  §§  114-124,  479-486. 
f»  7  How.  1. 
(b)  15  R.  563  ;  72  D.  74,  note. 


§  242.    Of  the  Proper  Contents  of  Written  Constitutions. 

The  proper  contents  of  a  written  Constitution  are  indicated 
by  its  purpose.  As  a  body  of  general  rules  in  obedience  to 
which  the  State  is  to  exert  its  appropriate  activity,  or  by 
which  its  inherent  activity  is  to  be  restrained,  it  should  define, 
first,  the  territorial  jurisdiction  of  the  State  and  the  popula- 
tion over  whom  its  political  powers  are  to  be  exercised ; 
second,  the  rights  of  the  people  as  against  the  State  ;  third, 
the  form  of  the  State,  as  monarchical,  aristocratic,  democratic, 
or  republican  ;  fourth,  the  system  of  government,  or  the  mode 


§§  243,  244      THE   WBITTEN   LAW  :    CONSTITUTIONS.        235 

in  which  the  governmental  functions  are  to  be  distributed  and 
the  officers  by  whom  they  are  to  be  discharged  ;  Jiftli,  the 
relations  to  the  State  of  its  various  political  subdivisions; 
sixth,  such  miscellaneous  provisions  as  may  appear  to  the 
people  important  enough  to  be  embodied  in  their  fundamen- 
tal law.  Rules  governing  conditions  which  are  Liable  to  fre- 
quent change  necessitating  alterations  in  the  law,  though 
found  in  many  modern  Constitutions,  belong  rather  to  the 
statutes  whose  emendation  is  attended  with  far  less  difficulty 
and  delay. 

Read  Jameson,  §§  96-103  a. 


§  243.    Of   the   Date    at   which   a    Written    Constitution    Takes 
Effect. 
A  Constitution  may  be  so  constructed  as  to  be  in  itself  a 
practically  operative  law,  or  it  may  simply  announce  princi- 
ples and  obligations  which  can  be  made  operative  only  through 
subsequent  legislative  action.     In  the   former  case   it  takes 
effect   immediately  upon  its   adoption   by   the   people,  either 
through  their  popular  vote  or  the  action  of  their  Constitu- 
tional  Convention,  («)     In   the   latter   case   each  legislative 
enactment  under  it  becomes  a  law  at  the  time  fixed  by  its 
own  provisions  or  the  general  rule  relating  to  all  statutes. 
Read  («)  74  D.  749. 


§  244.    Of    the    Prospective    Operation    of    Written    Constitu- 
tions. 

Unless  a  Constitution  by  its  terms,  or  by  the  circumstances 
attending  its  adoption,  clearly  shows  that  it  was  intended  to 
embrace  transactions  and  conditions  already  past,  it  will  have 
only  a  prospective  operation,  (a)  It  necessarily  displaces 
whatever  of  existing  laws  and  Constitutions  may  be  actually 
repugnant  to  it,  but  does  not  disturb  the  rights  which  became 
vested  while  they  were  in  force.  The  spirit  of  a  Constitution 
is  essentially  constructive,  (b)  It  contemplates  a  future 
through  which  the  State  is  to  be  guided  by  rules  now  judged  ta 


236  AMERICAN   JURISPRUDENCE.         §§  245,  246 

be  expedient  and  reasonable,  and  if  it  operates  to  remove  evils 
hitherto  endured,  it  is  by  substituting  for  political  systems, 
under  which  they  were  possible,  a  better  system  by  which 
they  will  be  excluded.  Still  it  is  competent  for  a  people,  if 
they  deem  it  necessary,  to  give  provisions  in  their  Constitution 
a  retroactive  effect. 

Read  (a)  129  U.  S.  36. 
(6)  34  D.  81  (82). 


§  245.    Of  the  Amendment  of  Written  Constitutions. 

A  Constitution  is  amendable  at  the  will  of  the  people  by 
whom  it  was  adopted.  An  unwritten  Constitution  develops 
by  formal  compacts  or  concessions  between  the  State  and  the 
people,  by  the  judicial  interpretation  and  application  of  admit- 
ted principles  of  government,  and  by  the  growth  of  custom. 
Into  a  written  Constitution  amendments  are  incorporated  by 
the  methods  pursued  in  its  original  construction  or  by  those 
which  are  prescribed  in  the  Constitution  itself,  (a)  In  the 
absence  of  such  methods  the  initiative  must  be  taken  by  the 
legislature  of  the  State,  whose  duty  it  is,  as  the  representative 
of  the  entire  people,  to  provide  a  mode  in  which  they  may 
express  their  will  in  reference  to  any  proposed  modification  of 
their  organic  law. 

Read  Jameson,  §§  525-534. 
(«)  3  St.  895. 


§  246.    Of  the  History   of  the  English  and   American   Constitu- 
tions. 

The  written  Constitutions  of  the  several  States  of  the 
American  Union,  as  well  as  that  of  the  United  States,  are 
derived,  like  their  Unwritten  Law,  from  that  of  England.  The 
English  Constitution  is  unwritten.  Its  principles  and  maxims 
have  descended  with  the  land  from  that  Saxon  ancestry  whose 
spirit  of  liberty  and  custom  of  local  self-government  lie  at  the 
foundation  of  the  Unwritten  Law.  Suppressed  for  a  time  by 
Norman  feudalism,  this  spirit  wrung  from  King  John  in  a.d. 


§  246  THE   WRITTEN    LAW  I    CONSTITUTIONS.  237 

1215,  the  concessions  contained  in  Magna  Charta,  by  which  the 
freedom  of  the  people  from  unreasonable  burdens,  the  equal 
administration  of  remedial  justice,  the  liberty  of  commerce, 
and  the  participation  of  certain  classes  of  the  population  in 
the  conduct  of  the  State,  were  permanently  secured.  Succeed- 
ing monarchs  were  compelled  to  confirm  and  enlarge  this  char- 
ter; Acts  of  Parliament  and  the  judgments  of  the  courts 
interpreted  and  applied  its  provisions  in  the  interest  of  the 
people.  The  Petition  of  Right  assented  to  by  Charles  the 
First  in  a.d.  1028,  the  Habeas  Corpus  Act  of  Charles  the  Sec- 
ond in  a.d.  1079,  the  Bill  of  Eights  delivered  by  the  two 
Houses  of  Parliament  to  "William  and  Mary  at  their  acces- 
sion to  the  throne  in  a.d.  1689,  and  the  Act  of  Settlement  in 
a.d.  1701,  which  at  once  conferred  the  crown  upon  the  House 
of  Hanover,  and  proclaimed  to  the  new  sovereign  the  consti- 
tutional liberties  of  England,  defined  still  more  clearly  and 
elaborately  the  indefeasible  rights  of  the  English  people,  and 
the  form  and  limitations  of  the  powers  and  duties  of  the 
State.  This  unwritten  Constitution  crossed  the  Atlantic  with 
the  colonists.  It  guided  and  inspired  their  own  political  or- 
ganization. It  furnished  them  with  their  ideas,  methods, 
forms  of  government,  and  to  a  great  extent,  with  all  the 
fundamental  laws  of  their  civic  life.  When  in  the  course 
of  human  events  it  became  necessary  for  the  colonies  to  sepa- 
rate from  the  mother  country  it  gave  to  the  Declaration  of 
Independence  its  causes  of  complaint  against  the  sovereign, 
and  justified  the  conclusions  to  which  the  American  people 
had  attained.  To  the  new  States,  which  this  act  of  separation 
brought  into  existence,  it  served  as  their  respective  Constitu- 
tions until  they  promulgated  new  ones  for  themselves,  and  of 
these  it  still  continues  to  supply  to  a  great  extent  the  sub- 
stance and  the  form,  the  language  and  the  interpretation. 
The  Federal  Constitution  drew  its  life  from  the  same  source. 
Although  the  nation  which  it  created  had  no  existence  before 
the  Constitution  was  adopted,  yet  the  people  from  whom  it 
emanated  were  the  same  people  who,  as  citizens  of  the  indi- 
vidual States,  had  inherited  the  Constitution  of  their  British 
ancestors.     Into  the  Constitution  of  the  new  nation  they  car- 


238  AMERICAN   JURISPRUDENCE.  §  247 

ried  the  same  principles  and  institutions,  and  so  far  as  they 
deemed  them  suitable  to  its  condition  the  same  form  and  sys- 
tem of  government,  the  same  methods  of  administration,  and 
the  same  reciprocal  rights  and  duties  of  the  citizens  and  the 
State.  Thus  our  Constitutions,  however  recent  their  appear- 
ance as  written  laws,  are  not  the  figments  of  a  day,  the  ven- 
turesome experiments  of  political  empiricism,  but  the  natural 
and  inevitable  outgrowth  of  ancient  and  well  comprehended 
principles,  whose  truth  has  been  tried  and  tested  by  ages  of 
practical  experience  and  demonstrated  by  the  freedom,  en- 
lightenment, and  happiness  of  the  people  among  whom  they 
have  prevailed,  («) 

Read  1  Bl.  Com.,  pp.  127,  128;  Cooley,  C.  Law,  Ch.  i,  pp.  3-19; 
Dillon,  Lect.  vii,  pp.  196-215  ;  Walker,  Lect.  iii. 
(a)  110  U.  S.  516. 


§  247.    Of  the  Nature  of  the  Written  Constitutions  of  the  States 
of  the  American  Union. 

The  severance  of  the  colonies  from  the  British  crown  at 
once  constituted  them  sovereign  States,  independent  alike 
of  one  another  and  of  every  foreign  power,  (a)  All  political 
authority  vested  in  each  one  of  them,  and  it  was  free  to  adopt 
such  a  government  and  pursue  such  a  national  policy  as  it 
deemed  best.  Already  possessing  unwritten  Constitutions 
originally  derived  from  that  of  England,  though  now  en- 
larged and  modified,  they  proceeded,  some  hastily,  some  with 
more  deliberation,  to  reduce  them  to  writing  so  far  as  it 
seemed  necessary  to  express  in  words  their  various  provis- 
ions. But  these  written  Constitutions  did  not  confer  upon 
them  their  respective  statehoods  nor  clothe  them  -with  a 
new  political  authority.  They  could  define,  develop,  and 
direct  it,  and  this  was  their  true  function  and  effect,  and 
hence  they  are  called  limitations  and  not  grants  of  power,  (b) 
Whatever  action  or  omission  they  prohibit,  from  that  action 
and  omission  the  State  must  forbear.  Whatever  rights  they 
guarantee  to  the  citizen,  such  rights  the  State  must  constantly 
preserve.     But  they  did  not  and  they  could  not  so  portray  the 


§  248  THE    WRITTEN   LAW  :   CONSTITUTIONS.  239 

present  and  anticipate  the  future  as  to  exhaust  in  their  pro- 
visions every  actual  and  possible  governmental  power.  Behind 
their  formal  statements  always  lies  that  vast,  undefined  sover- 
eignty whose  possession  is  the  essential  and  inseparable  char- 
acteristic of  every  independent  State,  whose  only  measure  is 
the  right  and  obligation  to  do  whatever  the  welfare  of  the 
people  may  demand,  whether  or  not  that  right  and  obligation 
have  been  enumerated  in  its  Written  Law.  (c) 

Read  1  Kent,  Lect.  x ;  Cooley,  C.  Law,  Ch.  xviii,  pp.  381-392; 

Cooley,  Const.  Lim.  Ch.  iii. 
(«)  3  Dall.  54;  3  Dall.  189;  4  Cranch,  209 ;  16  Pet.  367; 

19  R.  76.3;  8  Wheat.  044. 
(&)  35  D.  44;  00  D.  581  (583). 
(c)  11  Pet.  102. 


§  248.  Of  the  Unwritten  Constitutions  of  the  States  of  the 
American  Union. 
P»y  uniting  in  one  nation  under  the  Federal  Constitution 
these  independent  States  transferred  to  the  new  nation  cer- 
tain specific  governmental  powers.  The  rest  they  still  re- 
tained, and  among  those  retained  was  this  residual  and 
inexhaustible  sovereignty  which  no  written  Constitution  ever 
did  or  could  enumeratively  define,  (a)  Whatever  power  it 
becomes  necessary  to  exert,  which  is  not  mentioned  in  the 
written  Constitutions  either  of  the  State  or  the  United  States, 
is  therefore  vested  solely  in  the  State,  and  the  possession  of 
this  power  imposes  on  the  State  the  obligation  to  assert  it. 
Thus  both  before  and  since  the  formation  of  the  Federal 
Union,  the  Constitutions  of  the  States  of  which  it  was  at 
first  composed  have  been  to  a  considerable,  but  not  a  uni- 
form extent,  unwritten,  the  unwritten  serving  to  define  the 
meaning  and  supply  the  defects  of  that  which  had  been  ver- 
bally expressed,  (b)  To  the  Constitutions  of  the  States  which 
have  from  time  to  time  been  added  to  the  Union  the  same 
conditions  are  imputed,  not  because  such  States  possessed  an 
inherent  independent  sovereignty  before  their  admission  to 
the  Federal  Union,  but  because  the  fundamental  theories  and 


240  AMERICAN   JURISPRUDENCE.         §§  249,  250 

principles  of  that  Union  require  an  absolute  political  equal- 
ity between  the  States  which  are  its  members. 

Read  Jameson,  §§  88-92. 

(a)  35  D.  326 ;  1  R.  399. 
(6)  59  D.  759 ;  2  Pet.  627. 


§  249.    Of  the  Nature  of  the  Federal  Constitution. 

The  written  Constitution  of  the  United  States  differs  en- ' 
tirely  in  its  nature  from  the  written  Constitutions  of  the 
individual  States.  It  is  not  like  them  a  limitation  of  pre- 
existing powers.  It  is  a  grant  of  powers  which  created  the 
grantee,  and  which  until  the  grant  was  made  the  grantee 
never  had  in  any  degree  enjoyed,  (a)  The  United  States  had 
no  inherent  sovereignt}T,  no  political  organization,  no  state- 
hood, not  even  an  existence,  before  its  Constitution  was 
adopted,  and  still  possesses  none  which  that  Constitution  did 
not  confer.  Beyond  the  powers  enumerated  in  its  various 
provisions,  and  such  as  are  necessarily  implied  therefrom, 
the  United  States  therefore  has  no  powers.  Nor  is  there  in 
it  any  residual  fund  of  sovereignty  out  of  which  new  powers 
can  be  developed  at  the  demand  of  national  progress  or 
emergency.  Such  was  the  almost  superhuman  wisdom  by 
which  the  Federal  Constitution  was  devised,  so  comprehen- 
sive is  its  language,  and  so  liberal  has  been  its  interpreta- 
tion, that  few  exigencies  are  likely  to  arise  which  the  nation 
does  not  have  the  constitutional  authority  to  meet.  But 
when  they  do  occur  the  States  alone  can  solve  the  difficulty, 
either  by  their  individual  or  collective  action,  or  by  an 
amendment  to  the  Federal  Constitution. 

Read  Cooley,  C.  Law,  Ch.  ii,  pp.  29-31,  Ch.  iv,  pp.  105-110. 
(a)  12  Pet.  657;  1  Wheat.  304. 


§  250.    Of  the    Supremacy  of  the   Federal    Constitution  in  its 
own  Field  of  Jurisdiction. 
But  though  historically  derived  from  the   sovereignty  of 
the  States,  and  thus  intimately  related  thereto,  the  sover- 


§251  THE    WRITTEN    LAW:    CONSTITUTIONS.  241 

eignty  of  the  United  States  is  still  distinct  from  and  supe- 
rior to  theirs. («)  As  to  all  matters  exclusively  confided  to 
it  by  the  Federal  Constitution  it  occupies  a  field  into  which 
State  authority  cannot  enter  ;  and  where  its  powers  and  theirs 
are  concurrent  they  are  not  co-equal,  and  to  the  fiat  of  the 
United  States  the  State  must  yield.  The  Federal  Constitu- 
tion is  the  supreme  law  of  the  land.  No  Act  of  Congress, 
no  State  Constitution,  no  local  statute  can  prevail  against  it. 
It  enters  into  and  forms  a  part  of  all  subordinate  laws.  It 
binds  all  courts,  both  State  and  Federal,  (b)  It  modifies  and 
supersedes  all  treaties.  Its  amendments  repeal  and  abrogate 
every  inconsistent  law  and  Constitution.  (V)  Conflict,  how- 
ever, between  the  Federal  Constitution  and  the  laws  and 
Constitutions  of  the  States  is  never  presumed,  nor  is  its 
existence  recognized  unless  it  clearly  appears,  (d)  On  the 
contrary,  interpretations  of  the  Constitution  which  avoid  such 
conflict  are  favored  in  the  law.  Xo  power  of  the  United 
States  is  held  to  be  exclusive  unless  so  declared  or  evidently 
implied. (e)  Xo  exercise  of  its  concurrent  powers  forestalls 
the  action  of  the  State  beyond  the  exact  jurisdiction  assumed 
by  the  United  States.  Xo  limitation  placed  by  the  Constitu- 
tion upon  the  assertion  of  governmental  authority  applies  to 
any  State  unless  it  be  expressly  named. 

Read  Jameson,  §§  93,  94;  Cooler,  C.  Law,  Ch.  ii,  pp.  31-33. 
(a)  6  Wheat.  264. 
(6)  4  Wheat.  316. 

(c)  103  U.  S.  370. 

(d)  12  Pet.  72  (75,  70). 

(e)  70  D.  151 ;  92  D.  468. 


§  251.  Of  the  Contents  of  the  Federal  and  State  Constitutions. 
The  general  contents  of  the  State  and  Federal  Constitu- 
tions are  as  similar  as  the  natures  of  the  Constitutions  will 
permit.  Each  contains  in  some  form  a  definition  or  descrip- 
tion of  the  State,  declares  the  rights  of  its  citizens,  prescribes 
the  character  and  frame  of  its  government,  the  distribution 
of  its  functions,  the  method  of  making  and  administering  its 

16 


242  AMERICAN    JURISPRUDENCE.         §§  252,  253 

laws,  and  its  relation  to  its  various  subdivisions.  Some  em- 
brace many  matters  of  detail  which  others  leave  to  be  deter- 
mined by  the  action  of  the  legislature.  In  several  of  the 
State  Constitutions  the  Bill  of  Rights,  substantially  as  de- 
clared in  England  in  a.  d.  1689,  is  inserted,  and  as  a  limita- 
tion on  the  sovereignty  of  States  in  favor  of  the  citizen  it 
properly  belongs  iu  all.  The  Federal  Constitution,  being  a 
grant  of  powers,  did  not  contain  this  limitation,  but  the  same 
end  has  been  attained  by  subsequent  amendments,  (a) 

Read  Cooley,  Const.   Lim.,  Ch.  ix,  pp.  256-264;  Cooley,  C. 
Law,  Ch.  i,  p.  17,  Ch.  ii,  pp.  38-40,  Ch.  xii,  pp. 
21S-223;  Walker,  Lect.  xi. 
(a)  7  Pet.  243;  116  U.  S.  252. 


§  252.  Of  the  Interpretation  of  the  Federal  and  State  Consti- 
tutions by  the  Unwritten  Law. 
In  the  interpretation  of  all  these  Constitutions  recourse  is 
constantly  had  to  the  Unwritten  Law.  The  meaning  of 
words,  the  nature  of  the  privileges  granted  and  of  the  limi- 
tations imposed,  the  character  and  mode  of  exercising  gov- 
ernmental powers,  and  many  other  subjects  are,  as  intended 
by  these  Constitutions,  precisely  what  they  were  under  the 
Unwritten  Law,  and  from  it  alone  their  true  signification  can 
be  ascertained.  («)  Omissions  in  State  Constitutions  may  be 
supplied  from  that  reserved  sovereignty  which  remains  in 
the  State  after  the  limitations  imposed  upon  it  by  the  Fed- 
eral Constitution  or  its  own  have  been  respected.  Omissions 
in  the  Federal  Constitution  can  be  cured  only  by  amendment. 

Read  Cooley,  Const.  Lim.,  Ch.  iv. 

(a)  49  D.  697;  169  U.  S.  649  (653-655). 


§  253.    Of  the  Constitutionality  of  Treaties  and  Statutes. 

Treaties  and  statutes,  State  or  Federal,  are  unconstitu- 
tional in  reference  to  the  Federal  Constitution  whenever  they 
conflict  with  its  provisions  either  as  to  the  mode  in  which 
they  are  enacted,  the  subject-matter  to  which  they  relate,  or 


§  253  THE    WRITTEN    LAW  :    CONSTITUTIONS.  2-43 

the  rules  which  they  prescribe,  (a)  This  conflict  must  exist 
between  the  written  Constitution  itself  and  the  objectionable 
law,  for  the  United  States  has  no  unwritten  Constitution 
between  which  and  its  laws  collision  could  arise,  (b)  An  Act 
of  Congress,  or  the  rules  prescribed  by  the  Federal  authori- 
ties, are  also  unconstitutional  when  they  exceed  the  powers 
conferred  by  the  Constitution  upon  the  enactor  of  the  rules. 
The  statutes  of  a  State,  or  the  acts  of  its  officials,  are  un- 
constitutional in  reference  to  its  Constitution  whenever  they 
transgress  the  limits  imposed  either  by  the  express  provi- 
sions of  the  Constitution  or  by  the  principles  of  justice  and 
good  government  which,  though  not  expressed,  are  still  a  part 
of  its  fundamental  law. (c)  The  constitutionality  of  all  acts 
is  presumed  until  the  contrary  appears  (d),  and  acts  whose 
separate  parts  are  capable  of  independent  application  may  be 
sustained  as  to  the  constitutional  parts  while  those  in  con- 
flict with  it  are  repudiated,  (e)  Courts  are  reluctant  to  sup- 
port objections  on  this  ground  to  current  laws  unless  the 
defect  is  evident  and  no  other  question  is  presented  on  which 
the  case  can  be  decided  in  favor  of  the  party  raising  this 
objection.  (/)  In  England  questions  of  this  character  are 
not  entertained.  Its  unwritten  Constitution  is  interpreted 
by  Parliament,  and  every  Act  of  Parliament  passed  in  accord- 
ance with  its  own  rules  is  valid,  either  as  an  expression  of 
the  Constitution  or  as  an  amendment  to  it.  This  is  the  sense 
in  which  Parliament  is  omnipotent;  there  being  no  superior 
by  whose  judgments  its  enactments  can  be  overruled. 

Read  Cooley,  Const.  Lim.  Ch.  vii ;  Cooley,  C.  Law,  Ch.  ii,  p.  24, 
Ch.  vii,  pp.  163-174. 

(a)  44  D.  503;  54  D.  379  :    15  Wall.  610;  19  St.  374. 

(b)  1  Cranch,  137;  120  V.  S.  97;  81  D.  72(75). 

(c)  87  D.  52;  97  D.  575  ;  20  St.  123  :  15  St,  400. 
(rf)  19  Wall.  GOO:  120  V.  S.  678;  41  St.  109  (113). 
(e)  41  St.  278(293). 

(/)  63  D.  487  (506);  12  St.  183(185,  186). 


244  AMERICAN   JURISPRUDENCE.         §§  254,  255 

Article   II. 
Of  Treaties. 

§  254.    Of  the  Nature  of  Treaties. 

A  Treaty  is  a  compact  between  two  or  more  independent 
States.  In  its  form,  and  in  its  primary  effect  upon  the  parties 
by  whom  it  is  made,  it  is  not  a  law,  there  being  no  superior 
authority  who  could  prescribe  or  can  enforce  it.  It  depends 
for  its  sanction  upon  the  honor  and  interest  of  the  parties  and 
the  danger  that  its  infraction  may  become  the  cause  of  war. 
The  power  to  make  a  treaty  is  a  necessary  element  of  sover- 
eignty. In  this  country  it  can  be  exercised  only  by  the 
United  States  which,  under  the  present  provisions  of  the 
Federal  Constitution,  must  act  through  the  President  with 
the  concurrence  of  two-thirds  of  the  Senate,  the  lower  House 
of  Congress  not  participating  in  the  treaty  except  by  aiding 
in  whatever  legislation  may  be  required  to  carry  its  pro- 
visions into  effect,  (a) 

Read  Vattel,  Book  ii,  Ch.  xii-xvii,  Book  iv,  Ch.  ii-iv ;  Wool- 
sey,  §§  101-113 ;  Cooley,  C.  Law,  Ch.  v,  pp.  117- 
118. 
(a)  112  U.  S.  580  (598,  599) ;  2  Pet.  253  (314). 


§  255.    Of  the  Preparation  and  Adoption  of  Treaties. 

The  preliminary  negotiations  for  a  treaty  are  usually  con- 
ducted by  authorized  agents  of  the  parties,  by  whom  also  its 
contents  and  final  form  are  determined  and  the  completed 
treaty  signed,  subject  to  ratification  or  rejection  by  their 
respective  States.  Whether  such  agents  acted  with  due 
authority,  and  whether  the  matters  stipulated  in  the  treaty 
were  within  the  jurisdiction  of  the  stipulating  State,  are 
political  questions  into  which  the  courts  of  neither  State, 
after  the  ratification  of  the  treaty,  are  competent  to  inquire. 
A  treaty  thus  negotiated,  signed  and  ratified  is  valid  as  against 
the  parties  and  their  citizens  until  its  formal  abrogation. 
Read  2  Whart.  I.  L.  Dig.  §§  130-131  a. 


§§  256-258      THE   WRITTEN    LAW  I    TREATIES.  245 

§  256.    Of  the  Contents  of  Treaties. 

Any  affairs  in  which  the  treaty-making  States  are  interested 
may  be  made  the  subject  of  the  treaty  and  to  any  one  of 
these,  whether  political,  social,  or  commercial,  however  narrow 
may  be  its  limits,  the  treaty  may  be  confined.  Alliances 
aggressive  and  defensive  may  be  formed,  territory  and  popu- 
lation ceded,  immunities  of  trade  or  citizenship  reciprocally 
conferred,  or  the  practical  jurisdiction  of  the  laws  of  either 
State  extended.  Jn  short,  no  matter  seems  to  be  beyond  the 
scope  of  such  a  compact  unless  it  be  the  abdication  by  one  of 
the  contracting  States  of  its  own  sovereignty  or  an  essential 
change  in  its  internal  constitution,  (a) 

Read  1  Kent,  Lect.  ii,  p.  34,  Lect.  viii,  pp.  165-179. 
(«)  114  U.  S.  525 ;  133  U.  S.  258;  1  Pet.  511. 


§  257.    Of  the  Effect  of  Treaties. 

Subject  to  the  contingency  of  its  future  ratification  or 
rejection  a  treaty  takes  effect  between  the  parties  from  the 
date  when  it  is  signed,  though  as  to  private  rights,  if  any  are 
involved,  it  does  not  become  operative  until  its  final  ratifica- 
tion, (a)  A  treaty  cannot  impair  previously  vested  property 
rights,  nor  transfer  territory  or  privileges  which  the  granting 
State  does  not  possess,  (b)  The  cession  of  territory  by  one 
sovereign  to  another  does  not  disturb  the  titles  of  estates 
belonging  to  private  individuals  (c),  nor  are  the  local  laws 
which  governed  them  abolished  until  the  new  sovereign  has 
provided  others.  (<l) 

Read  1  Whart    T.  L.  Dig.  §  4  ;  2  Whart.  T.  L.  Dig.  §  132. 
(a)  !i  How.  280;  9  Wall.  32;  SI  D.  530,  note. 
(6)  0  Pet.  711. 
(c)  7  Pet.  51  (86,  87);  9  Pet.  117;  12  Pet.  410;  20  How. 

176(177,  178):  5  Wall.  211. 
(//)  11  How.  570(577-580);  114  U.  S.  512. 

§  258.    Of  the  Supremacy  of  Treaties. 

A  treaty  is  of  supreme  authority  in  all  the  States  which 
become  parties  to  it  and  binds  the  courts  and  all  subordinate 


246  AMERICAN   JURISPRUDENCE.         §§  259,  260 

legislative  bodies.  («)  In  this  country  it  is  subject  only  to  the 
Federal  Constitution,  is  of  the  same  force  as  an  Act  of  Con- 
gress, and  overrides  all  State  Constitutions  and  local  laws,  (b) 
When  treaties  made  by  the  United  States  conflict  with  Acts 
of  Congress  the  latest  must  prevail,  since  of  two  equal  incon- 
sistent rules  the  earlier  by  the  later  is  repealed. 

Read  2  Whart.  I.  L.  Dig.  §§  138,  139. 

(a)  3  Dall.    199;    100   U.    S.  483;   1  Cranch,   103;   6 

Wheat.   1. 

(b)  124  U.  S.  190;  130  U.  S.  581  (600,  601). 


§  259.    Of  Treaties  as  Portions  of  the  Written  Law. 

A  treaty,  though  primarily  a  compact,  may  indirectly  im- 
pose duties  upon  the  citizens  of  the  respective  States  and  thus 
become  to '  them  a  rule  of  conduct.  These  duties  may  be 
specifically  enumerated  by  the  treaty  itself,  or  its  stipulations 
may  render  some  legislative  action  necessary  in  which  they 
will  be  formally  prescribed,  (a)  It  is  in  this  mode  that  a 
treaty  enters  into  the  body  of  our  Written  Law,  forming  at 
once  a  portion  of  the  international  law  by  which  the  States 
are  governed  and  of  the  national  or  municipal  law  by  which 
their  citizens  are  controlled,  (b)  Of  treaty-laws  courts  take 
the  same  judicial  notice  as  of  every  other,  and  interpret  and 
administer  them  in  the  customary  modes. 

Read  («)  6  Pet.  691  (735). 

(jb)  2  Pet.  253  (314);  119  U.  S.  407. 


§  260.    Of  the  Amendment  and  Abrogation  of  Treaties. 

A  treat}-  can  be  abrogated  or  amended  only  by  the  concur- 
rent action  of  the  parties  by  whom  it  was  made.  Its  viola- 
tion by  either  party  does  not  dissolve  it  until  the  other,  in 
some  unequivocal  manner,  accepts  and  ratifies  the  dissolution. 
It  is  not  nullified  by  war  between  the  parties,  but  remains 
suspended  and  revives  with  the  return  of  peace,  (a)  The 
remedies  for  a  breach  of  treaty  rights  are  retorsion,  or  the 


§  261  THE    WRITTEN    LAW:    CODES.  247 

refusal  of  the  aggrieved  party  to  perform  its  corresponding 
treaty  duties  ;  reprisal,  or  an  act  of  retaliation  by  the  injured 
party  commensurate  with  the  injury  received  ;  or,  in  the  last 
resort,  a  war.  The  amendment  of  a  treaty  is  conducted  by 
preliminary  negotiations  through  accredited  agents,  and  their 
final  agreement,  subject  to  its  ratification  by  their  respective 
States. 

Read  Vattel,  Book  ii,  Ch.  xviii ;  2  Whart.  I.  L.  Dig.  §§  135- 
137  a;  3  Whart.  I.  L.  Dig.  §§  315-321. 
(a)  8  Wheat.  464. 


Article   III. 

Of  Codes. 

§  261.    Of  the  Nature  of  Codes. 

A  Code  is  a  formulated  statement  of  the  entire  body  of  the 
law  of  a  State  in  all  its  details  as  applicable  to  all  persons  and 
all  subjects.  It  emanates  directly  from  the  supreme  legisla- 
tive body  of  the  State  and  is  intended  to  set  forth  in  system- 
atic form  all  the  rules  of  public  and  private  law,  whether 
hitherto  they  have  been  written  or  unwritten.  It  constitutes 
a  new  law,  covering  the  whole  field  of  jurisprudence,  and 
supersedes  and  abolishes  every  former  rule.  It  leaves  no 
margin  of  principles  or  subjects  to  be  governed  by  customary 
law  or  by  judicial  precedent,  but  where  the  Code  is  silent  there 
is  no  law.  Rights  which  it  does  not  assert,  duties  which  it 
does  not  impose,  wrongs  which  it  does  not  prohibit,  remedies 
which  it  does  not  apply,  do  not  legally  exist.  It  differs  from 
all  other  forms  of  Written  Law  in  that  these,  however  com- 
plete, are  imbedded  in  a  vaster  body  of  Unwritten  Law  from 
which  their  defects  can  be  supplied,  while  a  Code  stands  alone, 
the  solitary  and  exclusive  law,  sufficient  or  insufficient  for  the 
needs  of  the  State  as  the  case  may  be,  but  in  either  case  un- 
aided by  precepts  or  doctrines  drawn  from  any  other  source, 
and  unamendable  except  by  the  authority  by  which  it  was 
originally  framed. 

Read  Amos.  Ch.  xiii.  pp.  :>tM-395. 


248  AMERICAN   JURISPRUDENCE.  §  262 

§  262.    Of  the  Legal  Importance  of  Codes. 

Codes  are  a  form  of  law  occasionally  attempted  both  in  an- 
cient and  modern  times.  It  was  natural  that  with  the  inven- 
tion of  writing  the  existing  laws  of  a  State  should  be  collected, 
arranged,  and  stated  in  this  permanent  form  either  by  private 
or  public  writers,  and  that  the  laws  thus  expressed,  if  complete 
and  satisfactory  to  the  sovereign,  should  be  imposed  by  him 
upon  his  people  and  occupy  the  place  of  all  other  forms  of  law. 
It  was  also  natural  that  such  a  body  of  Written  Law,  being  com- 
plete and  sufficient  for  the  time,  should  be  then  regarded  as 
sufficient  likewise  for  the  future,  and  therefore  the  final  utter- 
ance of  legislative  authority,  irrevocable  and  unamendable, 
to  which  thereafter  nothing  would  be  added  and  from  which 
no  subsequent  law-giver  would  ever  take  away.  But  it  was 
equally  natural,  rather  it  is  the  inexorable  law  of  nature, 
that  every  State  should  gradually  outgrow  its  laws,  unless 
indeed  under  the  dead  weight  of  their  changeless  rules  it  sank 
into  decay  and  disappeared.  The  living  State  must  grow  :  the 
stagnant  State  must  die  :  and  growing  States  cannot  remain 
confined  within  the  legal  systems  of  the  past.  Expansion  and 
amendment  irresistibly  occur  either  through  direct  legislation 
or  a  new  development  of  the  Unwritten  Law,  and  though  code 
follow  code  in  the  same  State  at  intervals  of  generations  or  of 
centuries  it  comes  to  the  same  result  at  last —  if  the  State  sur- 
vives, the  code  is  left  behind  and  finally  loses  its  authority  as 
law,  or  becomes  a  nucleus  around  which  clusters  and  accumu- 
lates a  constantly  increasing  multitude  of  later  statutes  and 
customary  laws.  While,  therefore,  codes  properly  prepared 
have  always  an  historical  and  literary  value,  and  perhaps  a 
temporary  legal  importance,  they  are  not  suited  to  the  genius 
of  progressive  States,  nor  can  they  take  the  place  or  fulfil  the 
functions  of  the  systems  in  which  the  Written  and  Unwritten 
Laws  combine. 

Read  Markby,  §§  69-71;  Clark,  Book  ii,  Ch.  xvi ;  Maine,  An- 
cient Law,  Ch.  i,  pp.  13-19;  Austin,  Lect.  xxxix, 
pp.  660-681,  Frag.  pp.  1021-1039,  1092-1100;  Dillon, 
Lect.  vi,  pp.  179-183,  Lect.  ix,  pp.  256-260,  Lect.  xiif 
pp.  342,  343. 


§§  263,  264      THE    WRITTEN    LAW  :   STATUTES.  249 

Article   IV. 

Of  Statutes. 

§  263.    Of  the  Nature  of  Statutes. 

A  Statute  is  a  formulated  statement  of  some  specific  rule 
governing  some  particular  object,  act,  or  person.  It  differs 
from  the  Unwritten  Law  in  that  its  words  as  well  as  its  idea 
or  principle  have  a  definite  legal  character  and  value,  from 
treaties  and  Constitutions  in  the  modes  in  which  they  are 
enacted  and  the  purposes  which  they  fulfil,  from  codes  in 
that  Statutes  always  presuppose  the  co-existence  of  the  Un- 
written Law  in  aid  of  which  they  are  themselves  prescribed. 
The  latter  difference  requires  especial  emphasis  in  reference 
to  certain  groups  of  Statutes  which  are  sometimes  miscalled 
codes.  A  compilation  of  statutory  and  unwritten  rules  on 
any  subject,  arranged  in  scientific  order  and  promulgated  by  the 
legislature,  is  not  a  code  but  merely  a  new  Statute,  unless  it 
is  intended  to  exclude  thereafter  all  resort  to  the  Unwritten 
Law.  The  propriety  of  the  names  "Code  Pleading,"  "Civil 
Code,"  "Code  of  Civil  Procedure,"  and  similar  titles  in  our 
legal  nomenclature  may  be  determined  by  this  test. 


§  264.    Of  Legislative  Authority  and  the  Public  Bodies  in  which 
it  Resides. 

All  acts  of  any  legislative  body  prescribing  rules  of  civil 
conduct,  and  not  creating  a  complete  code  of  laws,  are  com- 
prehended under  the  name  and  definition  of  statutes.  Legis- 
lative authority  is  lodged  in  various  bodies  according  to  the 
organic  form  of  the  State,  and  may  be  confided  to  different 
bodies  in  the  same  State  —  some  superior  and  some  sub- 
ordinate, (a)  In  this  country  under  both  the  national  and 
State  forms  of  government  there  is  one  supreme  assembly  — 
the  Congress  of  the  United  States,  the  Legislatures  of  the 
several  States  —  which  by  its  own  immediate  action  prescribes 
written  laws.  Iuferior  to  this  and  deriving  from  it  all  their 
legislative  powers  are  local   bodies,  such  as  counties,  cities, 


250  AMERICAN    JURISPRUDENCE.  §  265 

and  boroughs,  which  are  endowed  with  the  authority  to  make 
laws  concerning  details  not  embraced  within  the  general  legis- 
lation of  the  State.  Within  still  narrower  limits  a  private 
corporation  has  legal  jurisdiction  over  its  own  members  and 
can  define  their  rights  and  control  their  conduct  as  such  mem- 
bers by  its  lawfully  adopted  rules.  Judges  to  whose  direction 
the  course  of  legal  procedure  is  committed  and  administrative 
officers  responsible  for  the  transaction  of  governmental  busi- 
ness, where  the  supreme  legislature  has  not  provided  with 
sufficient  minuteness  for  the  proper  guidance  of  affairs,  may 
in  their  turn  impose  regulations  upon  their  inferior  officers 
and  other  persons  participating  in  their  judicial  or  ministerial 
operations.  All  such  rules,  being  the  result  of  legislative 
action  on  the  part  of  the  State  through  some  one  of  its  numer- 
ous governmental  agencies  and  determining  legal  rights  and 
obligations  are  truly  and  properly  called  laws  ;  and,  being  ex- 
pressly formulated  by  the  authority  from  which  they  proceed, 
are  Written  Laws  ;  and,  embracing  but  a  portion  of  the  whole 
law  of  the  State,  they  are  Statutes. 

Read  Cooley,  C.  Law,  Ch.  iii,  pp.  44-46. 

(a)  99  U.  S.  760  (761);  46  St.  98  (100-108). 


§  265.    Of  the  Validity  of  Legislative  Acts. 

A  legislative  body  can  perform  a  legislative  act  only  in  the 
mode  appointed  by  the  written  or  unwritten  Constitution  of 
the  State,  (a)  x\n  apparent  statute  is  invalid  and  has  no 
force  as  law  unless  the  legislative  body  which  enacted  it  was 
legally  constituted  and  observed  all  the  rules  and  forms  which 
the  Constitution  has  prescribed.  This  matter  is  always  open 
to  inquiry  in  litigations  dependent  upon  statutes  and  presents 
a  question  of  law  for  the  judgment  of  the  court,  not  one  of 
fact  for  the  decision  of  the  jury,  (b)  Upon  this  point  the  oral 
evidence  of  witnesses  cannot  be  received.  In  some  courts  the 
official  journals  of  the  legislature  have  been  presented  and 
examined ;  in  others  it  has  been  asserted  that  the  statute-roll 
itself  alone  is  competent  testimony,  and  that  if  duly  pro- 
mulgated as  law  according  to  constitutional  forms  no  further 


§  266  THE    WRITTEN    LAW  :    STATUTES.  251 

investigation  into  the  constitutionality  of  the  mode  of  its 
enactment  can  be  made,  (c)  The  motives  of  a  legislative  body 
in  making  rules  of  law  are  never  open  to  investigation.  ((/) 

Read  Cooley,  Const.  Lim.  Ch.  vi. 

(a)  58  D.  571,  note  ;  88  1).  377;  8  R.  602 ;  94  U.  S.  200; 

85  D.  348,  note  ;  51  D.  611,  note. 
(6)  20  II.  69. 

(c)  G6  D.  (373;    89  D.  93  ;    13  R.  640;   47  St.  801,  note; 

143  U.  S.  649. 

(d)  25  St.  230  ;  7  Wall.  506. 


§  266.    Of  the  Contents  and  Different  Parts  of  Statutes. 

A  statute,  formally  complete,  contains  a  title,  a  preamble,  \ 
the  enacting  clause  or  clauses,  and  the  necessary  provisos  and 
exceptions.  The  title  of  a  statute  is  a  brief  statement  of  its 
name  and  legal  character,  showing  to  what  class  or  general  v 
body  of  rules  it  belongs,  (a)  The  preamble  is  a  recital  of  the 
circumstances  and  conditions  which  prompted  the  legislature 
to  enact  the  statute.  The  enacting  clause  sets  forth  the  rule 
prescribed.  A  proviso  is  a  qualification  grafted  upon  the  en- 
acting clause  taking  some  special  matter  out  of  its  operation 
and  making  a  different  rule  concerning  it.  An  exception  is  a 
limitation  attached  to  the  enacting  clause,  preventing  it  from 
operating  on  some  matter  which  it  would  otherwise  include. 
Not  all  these  parts  are  found  in  every  statute.  Provisos  and 
exceptions  are  employed  only  when  the  form  of  the  statute 
and  its  subject-matter  make  them  necessary,  (b)  The  preamble 
is  often  wanting.  The  title,  though  generally  present,  is 
not  essential.  The  enacting  clause  alone,  with  its  qualifications 
and  limitations,  is  the  law.  The  other  parts  are  useful  for 
convenience  of  reference  and  classification,  and  to  aid  in  the 
interpretation  of  the  law.  In  order  to  avoid  confusion,  a 
statute  should  properly  embrace  but  a  single  subject,  to  which 
all  its  enacting  clauses  should  be  confined. 

Read  Cooley,  Const.  Lim.  Ch.  vi,  pp.  141-151. 

(a)  64  St.  64,  note. 

(b)  128  U.  S.  174  (181). 


252  AMERICAN   JURISPRUDENCE.         §§  267,  268 

§  267.     Of  the  Date  when  Statutes  Take  Effect. 

Unless  otherwise  provided  a  statute  takes  effect  and  becomes 
a  binding  rule  of  law  from  the  date  of  its  passage,  (a)  But  the 
legislative  body  may  appoint  a  different  date,  such  as  the  date 
of  its  own  adjournment  or  of  the  publication  of  the  statute, 
or  a  date  occurring  a  specified  number  of  days  after  its  passage, 
in  the  reckoning  of  which  the  clay  of  its  passage  will  be  ex- 
cluded. A  statute  may  be  made  to  take  effect  upon  a  future 
contingency,  like  the  enactment  of  a  similar  statute  by  another 
State  or  the  formal  acceptance  of  the  statute  by  some  local 
subdivision  of  the  State  ;  or  different  dates  may  be  assigned 
for  the  commencement  of  the  operation  of  its  different 
provisions. 

Head  1  Kent,  Lect.  xx,  pp.  454-459. 
(a)  46  St.  98  (114). 


§  268.    Of  the   Division  of  Statutes   into    Declaratory  and   Re- 
medial, Affirmative  and  Negative. 

Statutes  are  divided  into  many  classes  upon  many  different 
bases  of  division.  In  their  relation  to  the  other  forms  of  law 
they  are  either  Declaratory  or  Remedial.  A  Declaratory 
statute  is  intended  to  remove  a  doubt  as  to  the  existence  or 
the  meaning  of  some  rule  of  the  Unwritten  Law  or  as  to  the 
interpretation  of  a  prior  statute,  or  to  carry  into  effect  some 
provision  of  the  Constitution  or  a  treaty.  It  does  not  make  a 
new  law,  but  more  specifically  affirms  the  old.  A  Remedial 
statute  is  intended  to  extend  or  to  restrict  the  operation  of 
some  existing  rule  of  law  or  to  establish  a  new  rule,  (a)  A 
remedial  statute  extending  the  operation  of  a  former  rule  is 
called  an  enlarging  statute  ;  one  restricting  its  operation  is 
known  as  a  restraining  statute.  Remedial  statutes  establish- 
ing new  rules  are  further  divided  into  Affirmative  statutes  and 
Negative  statutes.  Affirmative  statutes  are  those  which  affirm 
a  new  rule  without  prohibiting  the  observance  of  the  old.  The 
rights  and  remedies  conferred  by  such  a  statute  do  not  super- 
sede those  already  in  existence,  but  are  cumulative  and  concur- 
rent with  them,  and  where  they  cannot  both  be  made  available 


§§  269,270      THE    WRITTEN   LAW:    STATUTES.  253 

by  any  person  he  can  elect  between  them.  But  Negative 
statutes,  on  the  contrary,  repeal  the  former  law  and  confer 
exclusive  rights  and  remedies,  (b)  The  character  of  a  statute, 
as  affirmative  or  negative,  is  determined  not  by  its  language 
but  by  its  effect. 

Head  1  Bl.  Com.,  pp.  86,  87,  89 ;  Black,  Ch.  xv,  §§  139-141. 
(a)  45  St.  700  (715-71*). 

(/y)  12  I).  257;  15  D.  462,  note ;  56  D.  331,  note;  28  D. 
525,  note. 


§  269.     Of  the  Division  of  Statutes  into  Public  and  Private. 

In  reference  to  the  persons  to  whom  statutes  are  directed 
they  are  divided  into  Public  and  Private.  A  Public  statute 
concerns  the  government,  or  the  public  interest,  or  all  persons, 
or  the  whole  of  any  class  of  persons,  (a)  A  Private  statute 
relates  to  a  single  person  or  a  few  persons  of  a  class  and  lias 
no  special  reference  to  the  community  at  large,  (b)  In  legal 
authority  and  dignity  public  statutes  are  superior  to  private 
statutes.  Courts  of  the  same  State  take  judicial  notice  of  their 
contents  and  effect ;  they  need  not  be  pleaded  nor  proved ;  they 
are  evidence  of  the  facts  which  they  recite.  Private  statutes, 
on  the  other  hand,  must  be  pleaded  and  proved  (c),  and  their 
recitals  are  evidence  only  between  the  parties,  (d)  A  private 
statute,  whatever  its  real  character,  may  be  declared  by  the 
legislature  which  enacts  it  to  be  a  public  statute  and  thus 
become  entitled  to  the  same  recognition  from  the  courts. 

Read  1  Bl.  Com.,  p.  86;  1  Kent,  Lect.  xx,  pp.  459.  460;  Cooley, 
Const.  Lim.,  Ch.  xi.  pp.  389-397. 

(a)  23  1).  537,  note. 

(i)   5  Wall.  268  ;  20  D.  360  (369). 

(c)   6  Pet.  317. 

(//)  17  Wall.  3i'. 


*  270.     Of  the  Division  of  Statutes  into  General  and  Local. 

According  to  the  extent  of  the  territory   which   they  affect 
statutes   are   divided  into   General  and   Local.      A  General 


254  AMERICAN   JURISPRUDENCE  §§  271,  272 

statute  is  in  force  throughout  the  entire  territory  of  the  State. 
A  Local  statute  governs  only  the  persons  and  property  within 
a  limited  area.  The  charter  of  a  public  corporation,  a  statute 
regulating  elections  in  certain  cities,  laws  prohibiting  fishing 
in  particular  rivers,  are  instances  of  local  statutes.  Local 
statutes  are  not  necessarily  private  statutes.  They  may  be  of 
a  public  character  in  themselves,  or  may  be  declared  public 
statutes  by  the  legislature,  («) 

Read  (a)  69  D.  642,  note;  21  St.  772,  note. 


§  271.    Of  the   Division    of  Statutes   into   Perpetual   and   Tem- 
porary. 

As  to  their  duration  statutes  are  divided  into  Perpetual  and 
Temporary.  A  Perpetual  statute  has  no  period  fixed  during 
which  it  shall  continue  to  be  law.  Most  statutes  are  of  this 
description,  although,  of  course,  they  may  be  at  any  time 
repealed.  A  Temporary  statute  is  one  whose  duration  is- 
limited  either  by  its  express  language  or  by  the  nature  of  the 
subject  to  which  it  relates.  The  duration  of  a  Bankrupt  Act, 
or  other  statute  intended  to  meet  a  transient  emergency,  may 
be  thus  predetermined.  Such  statutes  may  be  either  public 
or  private,  (a) 

Read  (a)  26  D.  631  (640). 


§  272    Of    the     Division     of    Statutes     into     Mandatory    and 
Directory. 

In  reference  to  the  obligations  they  impose  statutes  may 
be  Mandatory  or  Directory.  A  Mandatory  statute  commands 
that  certain  things  shall  be  done  or  be  forborne.  It  is  im- 
perative, and  the  persons  to  whom  it  is  addressed  have  no 
option  as  to  its  obedience;  and  where  it  prescribes  a  mode  of 
acting,  acts  not  conforming  to  that  mode  are  void.  A  Direc- 
tory statute  points  out  methods  in  which  legal  acts  may  be 
performed,  but  does  not  oblige  any  one  to  follow  them,  and 
if  other  methods  previously  existed  these  may  still  be  ob- 
served.    A  statute  permitting  service  of  process  to  be  made 


§  273  THE    WRITTEN    LAW:    STATUTES.  255 

by  publication,  for  example,  does  uot  deprive  an  officer  of 
the  right  to  make  a  personal  service  if  he  has  the  opportun- 
ity, but  a  statute  commanding  publication  would  leave  him 
no  alternative.  This  distinction  in  some  respects  resembles 
that  between  affirmative  and  negative  statutes,  but  applies 
rather  to  statutes  which  impose  an  obligation  than  to  those 
which  confer  a  right.  Whether  a  statute  is  mandatory  or 
directory  is  frequently  ascertainable  from  the  auxiliary  verbs 
which  it  employs,  such  as  "may,"  "must,"  or  "shall;"  but 
these  are  not  always  conclusive.  "When  the  tenor  and  pur- 
pose of  the  law  requires  it  "shall"  will  signify  a  permission, 
and  "may"  will  import  a  command. (a) 

Read  Black,  Ch.  xii,  §§  123-129. 

(«)  33  D.  320;  7G  D.  736;  28  St.  333;  4  Wall.  435;  156 
U.  S.  353. 


§  273.  Of  the  Division  of  Statutes  into  Prospective  and  Retro- 
spective. 
As  to  the  period  in  reference  to  which  they  exercise  con- 
trol over  persons  and  property  statutes  are  either  Prospective 
or  Retrospective.  A  Prospective  statute  contemplates  only 
the  future  and  commands  or  directs  what  is  thereafter  to  be 
flone  or  to  be  forborne.  All  statutes  are  presumed  to  be  of 
this  character  unless  they  are  clearly  retrospective,  (a)  A 
Retrospective  statute  changes  the  legal  conditions  which 
have  resulted  from  past  acts  or  forbearances,  either  depriv- 
ing the  parties  interested  of  advantages  which  if  the  law 
remained  unchanged  they  would  enjoy,  or  relieving  them 
from  obligations  which  under  the  former  law  they  had  in- 
curred. That  within  certain  limits  legislative  bodies  have 
the  power  to  enact  retrospective  statutes  is  undeniable.  But 
they  cannot  defeat  vested  rights  of  property  nor  impair  con- 
tract obligations.  So  long  as  these  forbidden  effects  are  not 
produced,  they  may  confirm  past  public  grants,  ratify  the 
unauthorized  acts  of  public  officers  and  agents,  remit  Legal 
penalties,  perfect  informal  titles,  and  change  the  methods  of 
applying  legal   remedies.      Strictly  construed,  such  statutes, 


256  AMERICAN   JURISPRUDENCE.  §§  274,  275 

though  dangerous  in  principle,  rarely  work  injustice.  On 
the  contrary,  they  prevent  the  evils  which  would  otherwise 
result  from  human  ignorance  or  inadvertence. 

Read  (a)  20  Wall.  179  (187). 


§  274.    Of  the  Validity  of  Statutes  in  General. 

The  validity  of  a  statute  depends  not  merely  on  the  fact  of 
its  enactment  by  a  lawfully  constituted  legislative  body  act- 
ing according  to  the  modes  prescribed  by  the  Constitution  of 
the  State,  but  also  on  the  character  of  its  subject-matter. 
The  powers  of  a  legislative  body  are  not  unlimited.  Statutes 
which  it  enacts  with  every  due  solemnity  may  nevertheless 
be  utterly  invalid  because  they  contain  matter  over  which 
it  has  no  jurisdiction  or  prescribe  duties  which  it  has  no 
authority  to  impose.  Statutes  must,  therefore,  always  be 
considered  in  view  of  these  limitations  upon  legislative 
powers.  Such  limitations  are  twofold:  (1)  Those  which 
grow  out  of  the  inherent  character  of  legislative  bodies,  and 
their  relations  to  the  State;  (2)  Those  which  arise  out  of 
the  State  or  Federal  Constitution,  (a) 

Read  (a)  1  R.  215. 


§  275.    Of  the   Validity  of  Statutes    as   Affected   by  the   Rela- 
tions of  the  Legislative  Body  to  the  State. 

A  legislative  body  is  not  the  State,  nor  does  it  possess  in- 
herent sovereignty.  It  is  a  mere  agency  through  which  the 
organized  people  undertake  to  discharge  certain  govern- 
mental functions  whose  final  purpose  is  their  mutual  advance- 
ment and  security.  («)  It  cannot  transcend  the  authority 
which  has  been  conferred  upon  it  by  the  State  either  ex- 
pressly or  by  implication  from  the  nature  of  the  State  and 
its  own  office  as  a  legislative  body,  nor  can  it  do  any  act 
which  tends  to  defeat  the  purposes  for  which  the  State  was 
formed.  (0)  Thus  in  all  States  where  the  ultimate  sover- 
eignty resides  in  the  people  their  supreme  legislative  bodies 
are  themselves  controlled  by  a  higher  law  which,    whether 


§  275  THE    WKITTEN    LAW  \    STATUTES.  257 

written  or  unwritten,  constitutes  the  test  by  which  the  valid- 
ity of  their  own  enactments  is  to  be  determined.  This  is  not 
precisely  the  same  question  as  that  concerning  the  constitu- 
tionality of  a  legislative  act  unless  the  word  "constitution  " 
is  extended  to  embrace  the  whole  framework  and  all  the  un- 
derlying principles  and  objects  of  the  State.  Where  a  State 
is  created  by  a  written  Constitution  which  confers  upon  it  all 
its  powers  its  legislature  can  perform  every  legislative  act 
enumerated  in  the  Constitution,  and  can  perform  no  more. 
The  fact  that  acts  enumerated  may  prove  detrimental  to 
the  State  may  be  a  reason  why  the  Constitution  should  be 
changed,  but  cannot  limit  legislative  power.  The  fact  that 
other  acts,  not  enumerated  in  the  Constitution,  would  be  bene- 
ficial to  the  State  does  not  authorize  the  legislature  to  per- 
form them.  In  such  a  State  the  higher  law  is  written  in  the 
Constitution,  and  the  Constitution  thus  becomes  the  sufficient 
and  the  only  test  by  which  the  validity  of  legislative  acts  is 
measured.  This  is  the  case  with  the  United  States  —  the 
nation  —  whose  Constitution  fixes  the  exact  limits  within 
which  legislative  power  may  be  exerted  and  in  which  all 
invalid  laws  are  also  unconstitutional.  But  in  a  State  whose 
written  Constitution  is  a  limitation  of  pre-existing  powers, 
under  which  all  unasserted  governmental  powers  retain  their 
former  comprehensiveness  and  vigor,  the  acts  of  legislative 
bodies  may  be  invalid  although  they  are  not  mentioned  or 
referred  to  in  the  Constitution.  Prior  to  the  adoption  of  the 
written  Constitution  the  legislative  power  was  not  without 
its  limits,  established  by  the  nature  of  the  State  and  those 
fundamental  principles  of  the  social  compact  which  underlie 
all  governmental  action  irrespective  of  constitutional  provi- 
sions. These  unwritten  and  irremovable  limitations  are  not 
destroyed  or  superseded  by  tin1  written  Constitution,  though 
many  of  them  may  be  expressed  therein,  and  legislative  en- 
actments which  exceed  them  are  no  less  invalid  than  if  they 
violated  the  words  as  well  as  spirit  of  the  Constitution.  The 
Constitutions  of  our  individual  States,  being  such  limitations 
of  pre-existing  powers,  therefore  do  not  present  the  sole  test 
of  the  invalidity  of  statutes  promulgated   by  their  several 

1: 


258  AMERICAN   JURISPRUDENCE.  §  276 

legislatures,  but  in  addition  to  their  written  Constitutions 
there  is  still  in  force  the  unwritten  higher  law  to  whose 
necessary  and  unchanging  principles  the  enactments  of  the 
legislative  body  must  also  conform,  (c) 

Read  (a)  31  D.  313  (329-331);   87  D.  52;   27  St.  106;  31  St. 
284,  note;  36  St.  608. 

(b)  20  D.  360;  97  D.  575;  15  St.  460  (463-465);  48  D. 

178;  74  D   572;  79  D.  236. 

(c)  48  D.  248,  note  ;  35  D.  326,  note. 


§  276.    Of  the  Validity  of  Statutes  as  Affected  by  the  Inherent 
Limitations  of  Legislative  Bodies. 

A  legislative  body,  in  that  it  is  a  legislative  body,  is  subject 
to  certain  fundamental  limitations,  from  which  no  legislative 
body  can  depart,  among  which  are :  (1)  That  a  legislature 
cannot  exert  executive  or  judicial  powers.  The  distinction 
between  judicial,  executive,  and  legislative  functions  is 
inherent  in  the  nature  of  things,  and  where  the  people,  in 
organizing  the  State,  have  distributed  these  among  different 
governmental  agencies  neither  can  intrude  into  the  dominion 
of  the  others.  The  creation  of  a  legislative  body  and  its 
endowment  with  legislative  powers  excludes  it  from  partici- 
pating in  executive  or  judicial  powers.  Not  that  the  same 
group  of  persons  may  not  be  constituted  a  judicial  body,  an 
executive  body,  and  a  legislative  body,  and  exercise  now  one 
and  then  another  of  these  different  functions,  its  own  legal 
capacity  and  its  relations  to  the  State  changing  as  it  transfers 
its  attention  from  one  of  these  duties  to  another.  But  as  a 
legislative  body  it  cannot  even  then  sit  in  judgment  upon 
controverted  questions  nor  administer  the  laws  which  it 
enacts,  (a)  Thus  while  a  legislature  may  amend  or  repeal  one 
of  its  own  former  statutes  it  cannot  interpret  or  explain  its 
meaning,  for  this  is  a  judicial  function  confided  only  to  the 
courts,  (b)  Nor  can  it  by  a  recital  in  a  later  statute  testify 
that  an  earlier  statute  has  been  repealed,  though  it  may  now 
formally  repeal  the  statute,  if  it  will,  (c)  (2)  That  a  legisla- 
ture cannot  delegate  its  powers.     Legislative  power  does  not 


S  276  THE    WRITTEN   LAW  :    STATUTES.  259 

originate  with  the  legislative  body.  Its  source  is  in  that 
sovereignty  which  resides  in  the  State  alone,  and  every  legis- 
lative body  holds  and  exercises  it  only  as  the  delegate  and 
agent  of  the  State.  Its  right  to  be  a  legislative  body  and  to 
discharge  legislative  functions  does  not  include  the  right  to 
call  into  existence  other  legislative  bodies  and  strip  itself  of 
any  portion  of  its  own  power  in  order  to  confer  it  upon  them. 
It  may  use  them  as  instruments  through  whose  aid  it  fulfils 
its  own  duties,  as  where  the  legislature  of  a  State  makes  laws 
for  local  subdivisions  of  the  State  through  the  agency  of 
public  corporations.  It  may  ordain  that  the  operation  of  its 
own  enactments  shall  be  contingent,  upon  their  acceptance  or 
rejection  by  the  people  of  the  whole  State  or  of  any  part 
thereof,  but  it  cannot  give  to  such  acceptance  or  rejection  the 
character  and  authority  of  an  independent  legislative  act.  (d) 
(3)  That  a  legislature  cannot  by  any  act  limit  the  powers  of 
succeeding  legislatures.  It  is  of  the  essence  of  sovereignty 
that  it  should  exist  at  all  times  complete,  absolute,  and  su- 
preme. If  it  were  possible  that  sovereignty  could  lapse  or  be 
suspended  even  for  a  moment  the  State  would  in  that  moment 
cease  to  be.  But  the  State  exercises  sovereignty  principally 
and  primarily  through  its  legislative  bodies,  whose  acts  are, 
therefore,  supreme  and  absolute  save  for  the  limitations  put 
upon  them  by  the  organic  law  or  Constitution  of  the  State 
itself.  That  the  supreme  and  absolute  authority  of  a  legis- 
lative body  should  be  controlled  by  any  restrictions  laid  upon 
it  by  a  past  legislative  body  of  a  jurisdiction  not  superior  to 
its  own  involves  a  contradiction  of  terms.  Hence  no  legisla- 
tive act  which  would  restrict  the  freedom  of  subsequent  co- 
equal legislative  bodies  is  or  can  be  valid.  Subordinate  legis- 
latures are,  of  course,  controlled  by  the  superior  legislatures 
which  created  them,  and  which  may  modify,  diminish  or  with- 
draw their  powers,  (e)  (4)  That  a  legislature  cannot  enact  a 
law  which  palpably  infringes  any  of  those  rights  to  assert  and 
defend  which  the  State  has  been  established.  The  sovereignty 
of  the  State,  although  unlimited  in  measure  or  degree,  exists 
only  for  specific  purposes  which  taken  together  constitute  the 
welfare  and  advancement  of  the  people  of  the  State,  and  any 


260  AMERICAN    JURISPRUDENCE.  §  276 

action  of  its  governmental  agencies  which  is  subversive  of 
these  purposes  is  necessarily  beyond  their  powers.  What  the 
State  itself  could  not  do  without  a  violation  of  its  highest 
obligations  to  its  citizens  no  institution  of  the  State  can  law- 
fully perform.  Whenever,  therefore,  a  statute  enacted  by  the 
legislature  is  so  absurd,  unjust,  or  impracticable  as  to  defeat 
the  objects  for  which  the  government  was  organized  the  statute 
is  invalid.  In  cases  where  this  question  is  in  doubt  the  law 
must  stand,  since  it  is  for  the  legislative  body  alone  to  judge 
in  doubtful  cases  whether  its  acts  are  expedient  and  wise ;  and 
hence  a  statute  which  merely  contravenes  the  individual  con- 
science or  imposes  severe  burdens  on  the  citizen  is  not  on  that 
account  without  authority.  But  where  the  enforcement  of  the 
law  must  inevitably  deprive  the  citizen  of  rights  which  it  is  the 
purpose  of  the  State  to  protect,  or  must  commit  the  State  to 
policies  which  are  in  contradiction  of  its  own  principles  of  gov- 
ernment, the  legislature  has  transcended  its  inherent  limitations 
and  the  law  is  null  and  void.  (/)  (5)  That  a  legislature  can- 
not lose  its  powers  by  failing  to  assert  them.  The  sovereignty 
of  the  State,  whose  authority  the  legislative  body  exercises 
and  in  whose  name  it  speaks,  never  is  suspended  and  never 
dies.  The  powers  confided  to  it  are  to  be  exerted  by  it  at 
the  time  and  in  the  mode  provided  by  the  State's  organic  law, 
and,  when  this  is  silent,  at  its  own  discretion.  Its  acquiescence 
in  existing  conditions,  therefore,  does  not  sanction  them  nor 
bar  it  from  interfering  with  them  whenever  in  its  judgment 
the  time  for  action  has  arrived,  (jj) 

Read  1  Bl.   Com.,  pp.  90,  91;   Cooley,  Const.  Lim.,  Ch.  v; 
Cooley,  C.  Law,  Ch.  iv,  pp.  Ill,  112. 

(a)  33  D.  346;   36  D.  543;  55  D.  499;  75  D.  616;  24  D. 

517;  82  D.  583;  98  D.  237;  4  Dall.  14. 

(b)  2  Cranch,  272;  104  U.  S.  668  (677-679). 

(c)  97  U.  S.  546  (518,  549). 

(d)  47  D.  4*0;  59  D.  506;  61   D.   508  (516);  17  R.  425; 

29  R  407;  37  R.  6;  45  St.  650;  72  D.  664, 
00  56  D.  723;  111  U.  S.  746. 

(f)  20  Wall.  655;  113  U.  S.  1  ;  37  St.  206 ;  58  D.  786; 

30  D.  430 ;  40  D.  274 ;  40  St.  17. 

(g)  94  U.  S.  155. 


§  277  THE   WRITTEN   LAW  :    STATUTES.  261 

§  277.    Of  the  Validity    of  Statutes    as    Affected   by  the   State 
and  Federal  Constitutions. 

In  addition  to  those  limitations  upon  legislative  power 
which  grow  out  of  the  inherent  nature  of  a  legislative  body 
and  its  relations  to  the  State  are  those  imposed  expressly  or 
by  necessary  implication  by  the  written  Constitution  of  the 
State.  The  character  of  these  depends  upon  the  nature  of 
the  Constitution  as  a  limitation  or  a  grant  of  powers.  Xo 
act  of  Federal  legislation  can  be  valid  unless  within  the 
powers  conferred  upon  the  legislative  body  by  the  Federal 
Constitution.  All  acts  prohibited  by  the  State  or  Federal 
Constitutions  are  likewise  null  and  void. (a)  Of  the  latter 
three  are  of  especial  moment,  namely:  (1)  Statutes  defeat- 
ing vested  rights  of  private  property;  (2)  Statutes  impairing 
the  obligation  of  contracts;  (3)  Ex  post  facto  laws.  The 
ownership  of  public  property  and  the  regulation  of  the  use 
of  private  property  are  always  within  legislative  control,  (b) 
But  with  the  ownership  of  private  property  the  legislature 
cannot  interfere  so  far  as  to  deprive  its  owner  of  rights  in  it 
which  already  have  accrued,  unless  it  becomes  necessary  to 
destroy  the  property  in  order  to  protect  the  public  health  or 
safety,  or  to  appropriate  it  to  the  public  use  upon  making 
suitable  compensation  to  its  owner,  (c)  Over  the  obligation 
which  the  law  imposes  by  virtue  of  a  contract  upon  the  con- 
tr  icting  parties  at  the  time  the  contract  is  made,  future  legis- 
lation  also  lias  no  power.  While  it  may  change  the  indirect 
consequences  flowing  from  the  execution  of  the  contract  or 
from  the  failure  to  perform  it,  or  may  vary  the  remedies  open 
to  the  parties  injured  by  its  breach,  provided  a  substantial 
remedy  which  existed  at  the  making  of  the  contract  still  re- 
mains, the  rights  and  duties  created  by  the  contract  as  be- 
tween  the  parties  cannot  be  disturbed. (d)  This  constitutional 
limitation  does  not  apply  to  contracts  concerning  public  prop- 
erty or  to  marriage,  nor  to  incorporeal  statutory  rights,  nor 
prohibit  laws  affecting  future  contracts. (V)  Nor  can  a  legis- 
lative body  by  any  contract  of  its  own.  on  behalf  of  the 
State,  incur  an  obligation  which  will  prevent  it  or  a  future 
legislature  from  taking  any  action  necessary  to  protect  the 


262  AMERICAN   JURISPRUDENCE.  §  278 

lives  or  health  or  property  of  citizens.  Ex  post  facto  laws, 
by  which,  subsequently  to  their  commission,  innocent  acts 
are  made  crimes,  or  the  gravity  of  offences  is  increased,  or 
penalties  are  aggravated,  or  disabilities  imposed  on  the 
offender,  are  always  void.(/) 

Read  1  Kent,  I.ect.  xix,  pp.  407-439. 
(a)  41  St.  109  (113);  46  St.  315. 
(6)  36  D.  441 ;  97  D.  82. 

(c)  4  St.  172. 

(d)  10  St.  266. 

(e)  38  D.  317 ;  25  R.  513  ;  125  U.  S.  190 ;  91  D.  262 ;  121 

U.  S.  282. 
(/)  124  U.  S.  200. 


§  278.    Of  the  Jurisdiction  of  Courts  over  Questions   concern- 
ing the  Constitutionality  and  Validity  of  Statutes. 

The  constitutionality  and  validity  of  statutes  are  questions 
which  the  courts  only  can  decide,  and  these  questions  they 
will  not  consider  unless  essential  to  the  decision  of  the  con- 
troversy in  which  they  arise,  (a)  Nor  can  these  questions  be 
raised  except  by  litigating  parties  upon  whose  rights  the 
disputed  statutes  might  exercise  a  prejudicial  influence,  (b) 
When  in  the  course  of  regular  proceedings  these  questions 
come  before  the  courts  for  judgment  the  statutes  are  sus- 
tained unless  the  conflict  between  them  and  the  fundamental 
law  is  evident,  (c)  That  the  court  might  deem  them  inex- 
pedient, impolitic,  severe,  is  not  sufficient,  (d)  The  remedy 
for  such  legislation  is  in  the  hands  of  the  people  and  their 
representatives,  not  of  the  courts.  Where  a  statute  separ- 
able into  distinct  and  independent  rules  of  conduct  is  clearly 
invalid  as  to  some  and  may  be  valid  as  to  others,  the  court 
must  give  effect  to  those  provisions  which  are  valid  although 
it  is  compelled  to  declare  the  others  void. 

Read  1  Kent,  Lect.  xx,  pp.  447-454. 

(a)  13  D.  484;  44  D.  593  (603-605) ;  54  D.  379. 
(6)  2G  D.  631  (634,  635) ;  4  St.  147. 

(c)  36  D.  543  (545). 

(d)  02  D.  424. 


§§  279,  280      THE   WRITTEN   LAW  :    STATUTES.  263 

§  279.    Of  the  Suspension  and  Expiration  of  Statutes. 

A  statute  may  expire  by  its  own  limitation,  or  may  be  at 
any  time  suspended  or  repealed.  The  suspension  of  a  stat- 
ute may  result  either  from  a  direct  act  of  the  legislature 
operating  on  that  statute,  or  from  some  general  rule  of  law 
affecting  all  statutes  of  that  class  under  similar  conditions. 
Thus  the  local  Bankrupt  Laws  of  the  individual  State  may 
be  suspended  during  the  existence  of  a  National  Bankrupt 
Act,  or  Statutes  of  Limitation  be  inoperative  while  war  pre- 
vails between  the  countries  of  the  creditor  and  debtor.  A 
suspended  statute  is  not  abrogated  even  temporaril}-,  but  still 
governs  all  those  cases  which  are  not  excluded  from  its  juris- 
diction by  the  suspending  act  or  condition,  (a) 

Read  (a)  3  Dall.  365. 


§  280.    Of  the  Repeal  of  Statutes. 

A  statute  may  be  repealed  either  by  the  express  words  or 
by  the  necessary  implications  of  a  subsequent  statute,  (a)  An 
express  repeal  terminates  the  existence  and  the  force  of  the 
repealed  statute  to  the  precise  extent  which  the  language  of 
the  repealing  statute  may  require.  Repeal  by  implication  is 
never  favored  in  the  law  and  will  take  place  only  so  far  as 
the  repugnancy  between  the  earlier  and  the  later  statute  is 
evident  and  irreconcilable,  (b)  Thus  a  statute  is  not  repealed 
by  a  subsequent  affirmative  statute  if  both  can  stand,  nor  by 
the  re-enactment  of  the  same  statute  with  additions ;  (c)  nor 
is  a  particular  or  special  statute  rescinded  by  a  later  general 
statute  unless  it  is  specifically  mentioned.  (</)  But  a  nega- 
tive statute,  or  a  new  statute  covering  the  whole  subject,  or 
the  adoption  of  a  code  or  a  revision  from  which  the  former 
statute  is  excluded,  or  a  legislative  act  removing  the  reason 
of  the  statute,  or  its  re-enactment  with  the  portions  now 
claimed  to  be  repealed  omitted,  or  the  passage  of  a  statute 
evidently  intended  by  the  legislature  as  a  substitute  for 
former  legislation  on  the  subject,  or  the  entrance  of  the  State 
into  treaty   relations  which    are    inconsistent   with  existing 


264  AMERICAN   JURISPRUDENCE.  §  281 

statutes,  operate  to  the  extent  of  the  repugnancy  as  a  re- 
peal, (e)  A  penal  statute  is  repealed  by  any  legislative  change 
iu  the  nature  of  the  offence  or  the  degree  of  punishment,  but 
not  necessarily  by  an  alteration  in  the  kind  of  penalty  to  be 
inflicted  (/);  though  as  to  past  offences  such  an  alteration 
would  give  the  statute  an  ex  post  facto  aspect,  and  render  it 
invalid.  The  recital  in  a  statute  that  a  former  statute 
was  repealed  is  neither  its  repeal  nor  evidence  that  it  has 
been  repealed. 

Read  1  Bl.  Com  ,  p.  90 ;  1  Kent,  Lect.  xx,  p.  466. 

(a)  15  D.  156;  14  D.  206,  note;  1  D.  488  (496). 

(6)  16  Pet.  342;  79  D.  490;  82  D.  163. 

(c)  11  Wall.  652;    106  U.  S.  596;   137  U.  S.  682;  157 

U.  S.  46. 
((/)  17  Wall.  425 ;  109  U.  S.  556. 
(e)  58  D.  100;   11  Wall.  88;  97  U.  S.  546;   143  U.  S.  18 

(26,  27). 
(/)  34  D.  492;  70  D.  302;  25  R.  760. 


§  281.    Of  the  Effect  of  the  Repeal  of  a  Statute. 

The  repeal  of  a  statute  cannot  affect  rights  which  had  pre- 
viously become  vested  under  it,  though  inchoate  rights  will 
be  destroyed,  (a)  If  the  repealed  statute  conferred  jurisdic- 
tion upon  courts  or  other  public  officers,  with  its  repeal  this 
jurisdiction  ceases,  and  all  incomplete  proceedings  before 
them  become  null  and  void,  (b)  The  repeal  of  a  penal  stat- 
ute without  conditions  abrogates  all  the  penalties  which  it 
inflicted  except  those  which  have  been  already  imposed  upon 
convicted  criminals  by  the  sentence  of  the  courts,  (c)  When 
a  repealing  statute  is  itself  repealed  the  law  which  it  abro- 
gated is  revived,  unless  a  contrary  intention  of  the  legisla- 
ture is  apparent  or  the  abi-ogated  law  is  inconsistent  with 
other  statutes  passed  since  it  was  repealed,  (d) 

Read  (a)  23  D.  478;  39  D.  601,  note;  56  D.  688. 

(b)  12  1).  479,  note;    36  D.   185;  5  Wall.  541  ;  7   Wall. 

506;  98  U.  S.  39S;  101  U.  S.  433 ;  137  U.  S.  141. 

(c)  94  D.  214,  note  ;  13  How.  429. 

(d)  36  D.  228. 


§  282  THE    WRITTEN    LAW:    STATUTES.  265 

§  282.    Of  the  Validity  of  the  Legislative  Acts  of  Subordinate 
Legislative  Bodies. 

The  foregoing  doctrines  apply  not  merely  to  statutes  passed 
I  by  the  legislature  of  a  State  or  nation,  but,  so  far  as  the  mat- 
ters subject  to  their  jurisdiction  will  permit,  to  the  subordi- 
nate forms  of  Written  Law,  such  as  municipal  ordinances, 
corporate  by-laws,  and  the  rules  of  courts.  The  validity  of 
these  depends  not  only  upon  their  correspondence  with  the 
fundamental  principles  of  law  and  the  written  Constitution 
of  the  State,  but  upon  the  provisions  of  the  charters  of  these 
different  corporations  and  the  authority  conferred  by  the 
State  upon  its  courts.  Such  ordinances,  rules,  and  by-laws 
may  be  declaratory  or  remedial,  public  or  private,  affirma- 
tive or  negative,  temporary  or  perpetual,  general  or  special, 
mandatory  or  directory,  prospective  or  retrospective.  They 
must  be  enacted  according  to  the  methods  determined  by  the 
law,  and  may  be  suspended  or  repealed  by  the  legal  author- 
ity from  which  they  proceed,  or  be  abrogated  by  the  legisla- 
ture of  the  State. 


266  AMERICAN   JURISPRUDENCE.  8  283 


CHAPTER   IX. 

OF   THE    INTERPRETATION  OF  LAW. 

§  283.  Of  the  Necessity  for  an  Authoritative  Interpretation  of 
the  Law. 
The  words  in  which  a  rule  of  law  is  expressed  convej^,  more 
or  less  accurately,  its  true  meaning  and  intent.  When  both 
the  language  and  the  mental  concept  which  it  clothes  pro- 
ceed from  the  same  legislative  authority  the  correspondence 
between  the  words  of  the  law  and  its  true  intent  should  be 
the  closest  possible,  and  what  the  words  as  used  by  the  legis- 
lative body  actually  mean  or  imply  must  be  accepted  as  the 
rule  of  law.  Such  is  the  case  with  Written  Law  in  all  its 
forms, — Constitutions,  Treaties,  Statutes,  Codes.  When  the 
ideas  embodied  in  the  law  have  been  enunciated  in  phrase- 
ology selected  by  persons  not  possessing  legislative  authority 
but  of  great  legal  skill  and  learning,  and  in  this  verbal  form 
have  become  established  by  long  itsage  and  general  recognition 
among  the  duly  formulated  rules  of  law,  or  when  the  form  of 
words  was  chosen  by  persons  now  unknown  but  has  been  uni- 
versally and  immemorially  adopted  by  past  generations  of 
lawyers  and  judges,  while  it  cannot  be  assumed  with  the 
same  certainty  as  in  the  former  case  that  "the  words  do  ex- 
press the  precise  intent  of  the  law-giver,  yet  custom  endows 
them  with  an  authority  only  less  than  that  of  legislative 
choice  itself.  Such  expressions  of  the  law  are  found  in  the 
maxims  and  definitions  of  the  Unwritten  Law,  and  in  those 
utterances  of  great  judges  and  law-writers,  upon  whose  state- 
ments of  the  law  succeeding  ages  have  not  attempted  to  im- 
prove. Where  the  language  in  which  the  rule  is  couched  was 
framed  without  legislative  authority,  and  has  not  received  the 
sanction  which  general  and  prolonged  acceptance  may  confer, 
there  is  no  special  presumption  in  favor  of  its  correctness,  and 


§  284         INTERPRETATION   OF    UNWRITTEN    LAW.  207 

the  accuracy  with  which  it  expresses  the  rule  is  always  subject 
to  investigation.  Such  are  the  propositions  of  the  Unwritten 
Law  contained  in  the  decisions  of  the  courts  and  the  treatises 
of  modern  legal  authors.  It  is  the  function  of  interpretation 
to  discover  in  all  these  cases  the  real  intent  and  meaning  of 
the  law,  in  order  that  the  actual  will  and  purpose  of  the  law- 
giver in  reference  to  rights  and  duties,  wrongs  and  remedies, 
may  be  accomplished.  The  power  to  exercise  this  function  is, 
under  our  own  political  system  and  that  of  most  other  civi- 
lized States,  lodged  in  the  courts,  whose  application  of  a  rule 
of  law  to  any  state  of  facts  presupposes  that  they  have  first 
ascertained  the  true  significance  and  purport  of  the  rule,  (a) 
By  what  principles  they  are  guided  in  this  investigation  the 
present  chapter  will  explain. 

Read  Holland,  Ch.  xviii,  p.  :371 ;  Markby,  §§  72-75;  Black,  Ch. 
i,  §§  1-6;  Austin,  Lect.  xxxvii,  pp.  624-633. 
(a)  69  D.  450,  note. 


SECTION   I. 

OF    THE    INTERPRETATION     OF    THE    UNWRITTEN    LAW. 

§  284.  Of  the  Variety  of  the  Standards  Employed  in  the  In- 
terpretation of  the  Unwritten  Law. 
Except  where  rules  of  the  Unwritten  Law  have  acquired 
authoritative  expression  an  inquiry  as  to  their  meaning  dif- 
fers but  little  from  the  inquiry  as  to  the  essential  character 
of  the  rule.  Strictly  speaking,  interpretation  is  an  effort  to 
derive  from  fixed  and  known  verbal  premises  an  abstract  and 
ideal  conclusion,  as  where  the  positive  and  unchangeable  lan- 
guage of  a  statute  guides  the  interpreter  to  a  knowledge  of 
the  legislative  will.  But  in  the  unauthoritative  statements  of 
the  rules  of  the  Unwritten  Law  there  is  no  such  fixed  and 
changeless  verbal  standard.  Some  judges  and  authors  express 
the  rule  in  one  way,  some  in  other  ways  ;  some  by  deciding  in  ;i 
single  word  the  issues  of  a  controverted  case  ;  some  by  elabor- 
ate explanations  and  discussions;  and  from  these  and  from 
other  sources  the  investigator  must  ascertain  as  best  he  may, 


268  AMERICAN   JURISPRUDENCE.  §  285 

by  one  and  the  same  process  of  research,  the  existence  and 
the  meaning  of  the  rule.  For  this  reason,  while  the  field  of 
his  investigation  is  extensive,  the  methods  by  which  he  pur- 
sues it  are  numerous  and  varied  ;  sometimes  proceeding  along 
the  lines  of  logical  inference  from  universal  principles,  some- 
times adopting  conclusions  demonstrated  by  experience,  some- 
times guided  by  examples  and  analogies,  sometimes  deducing 
general  rules  from  the  comparison  of  many  particular  proposi- 
tions. Any  attempt  to  classify  these  sources  and  methods 
would  be  ineffectual.  The  most  useful  of  the  standards  to 
which  the  interpreter  resorts  are  these :  (1)  Judicial  Decisions  ; 
(2)  Self-Evident  Principles;  (3)  Suggestions  of  Legal  Reason 
and  Instinct;  (4)  Customs;  (5)  Opinions  of  Acknowledged 
Jurists  ;  (6)  Cognate  Doctrines  of  the  Unwritten  Law ;  (7) 
Laws  of  Foreign  States. 


§  285.    Of  Judicial  Decisions  as   Interpreters  of  the  Unwritten 

Law. 

A  judicial  decision  is  an  adjudication  by  a  competent  tribunal 
upon  a  legal  question  arising  out  of  a  controversy  submitted 
to  its  judgment  and  necessary  to  the  determination  of  the  con- 
troversy. The  judgment  of  an  incompetent  tribunal  is  not  a 
judicial  decision.  The  judgment  of  a  competent  tribunal  upon 
a  question  which  is  not  involved  in  controversy  before  it,  is 
not  a  judicial  decision.  The  judgment  of  any  tribunal  upon  a 
question  involved  in  the  controversy  before  it,  but  which  it  is 
not  necessary  to  decide  in  order  to  decide  the  controversy, 
is  not  a  judicial  decision.  But  those  propositions  of  law, 
whether  one  or  many,  whether  principal  or  subordinate,  which 
the  court  was  compelled  to  pass  upon  in  order  to  reach  the 
conclusion  by  which  the  rights  of  the  contending  parties  were 
eventually  adjusted  and  established,  taken  collectively,  consti- 
tute the  decision.  These  propositions  may  be  expressly  stated, 
or  may  be  left  to  be  inferred  from  the  claims  of  the  litigants 
and  the  final  disposition  of  the  case.  When  expressly  stated 
they  may  be  enumerated  in  didactic  formulae  or  imbedded  in 
an  overwhelming  mass  of  explanations  and  examples.     They 


§  286  INTERPRETATION    OF    UNWRITTEN  LAW.  269 

may  be  obvious  to  the  ordinary  reader  of  the  case  as  published 
in  the  Reports,  or  may  require  laborious  research  through  all 
the  facts  and  records  of  the  cause  for  their  discover}-.  But 
when  discovered  they  present  to  the  investigator  the  law  of  the 
case,  the  ratio  or  rationes  decidendi  which  governed  its  deter- 
mination, the  rules  of  law  which  the  court  in  deciding  the 
case  at  once  obeyed  and  proclaimed.  Then  all  the  illustra- 
tions and  discussions  which  accompany  these  propositions  in 
the  opinions  of  the  judges  or  the  arguments  of  counsel ;  all 
the  affirmations,  admissions,  and  contradictions  in  the  plead- 
ings ;  all  the  facts  in  controversy  and  the  decision  of  the 
jury  or  the  judge  concerning  them,  serve  to  explain  the  mean- 
ing of  these  rules  of  law  and  give  to  them  a  practical  interpre- 
tation through  their  application  to  the  circumstances  of  the 
individual  case.  It  is  in  this  way  that  reported  cases  author- 
itatively promulgate  the  law;  and  the  art  of  analyzing  cases  so 
as  to  discern  the  rationes  decidendi,  to  distinguish  between 
these  and  all  the  other  matter  which  the  case  contains,  and 
which,  however  valuable  it  may  be  for  purposes  of  explanation, 
is  not  as  there  stated  authoritative  law,  is  an  art  which  the  stu- 
dent should  endeavor  early  to  acquire. (a) 

Read  Black,  Ch.  xvii.  §§  146-149;  Wambaugh,  Book  i,  Ch.  ii, 
iii,  v-viii. 
(a)  G  Wheat.  264  (399  :  27  D.  628,  note;  73  D.  565;  G2 
D.  421  (454);  189  U.  S.  G49  (679). 


§  286.  Of  the  Comparative  Value  of  Different  Judicial  Decis- 
ions as  Interpreters  of  the  Unwritten  Law. 
A  judicial  decision  may  occupy  toward  the  rule  of  law  which 
it  promulgates  and  explains  any  one  of  three  relations  :  (1) 
Its  promulgation  of  the  rule  may  have  the  force  of  legislation 
and  make  the  rule  the  law  for  future  cases  as  well  as  for 
the  one  in  which  it  has  been  stated  :  (2)  Its  recognition  and 
construction  of  the  rule  may  raise  a  strong  presumption,  not  to 
be  departed  from  without  grave  reasons,  that  the  rule  as 
promulgated  by  it  is  correct ;  (3)  It  may  be  accepted  as  con- 
clusive in  the  case  to  which  the  rule  has  been  applied,  and  as 


270  AMERICAN   JURISPRUDENCE.  §  287 

suggesting  a  rule  which  subsequent  tribunals  are  at  liberty  to 
follow  or  reject.  When  the  decision  emanates  from  the  su- 
preme court  in  a  State  it  becomes  a  law  governing  all  future 
cases  arising  in  the  same  State  until  it  is  superseded  by  a 
statute  or  over-ruled  by  a  new  decision  of  the  same  court,  (a) 
When  it  is  rendered  by  an  inferior  court  it  is  presumed  to  be 
correct  and  is  of  great,  though  not  conclusive,  authority  in 
all  courts  of  an  equal  or  inferior  grade  in  the  same  State,  until 
the  rule  is  finally  settled  by  the  supreme  court  of  the  State 
or  by  a  statute.  A  decision  proceeding  from  the  courts  of  one 
State  has  no  force  as  law  in  any  other  State  except  when  it 
becomes  the  duty  of  that  State,  under  a  treaty  or  the  comity 
of  nations  or  the  provisions  of  a  confederate  Constitution,  to 
carry  into  effect  the  laws  of  the  State  in  which  the  decision 
has  been  made  ;  but  still  may  have  great  weight  where  the 
customs  and  traditions  of  both  States  are  the  same,  or  where 
the  decision  was  rendered  by  a  court  composed  of  judges  dis- 
tinguished for  their  legal  learning,  or  when  it  has  been  gen- 
erally accepted  and  followed  in  other  States  where  the  same 
question  has  arisen.  Decisions  of  the  courts  of  foreign  States, 
except  under  the  circumstances  just  mentioned,  may  be  of 
great  utility  as  suggestive  of  the  rule  of  law  but  possess  no 
authorit}^. 

Read  Ram,  Leg.  J.  Ch.  iii,  v,  xiv-xvi,  xviii;  Black,  Ch.  xvii, 
§§  153-161. 
(a)  37  D.  761  (767). 


§  287.  Of  the  Value  of  Judicial  Decisions  upon  Analogous 
Cases  as  Interpreters  of  the  Unwritten  Law. 
In  addition  to  the  service  rendered  by  judicial  decisions 
through  their  direct  promulgation  of  law,  they  perform  another 
of  scarcely  inferior  consequence.  In  connection  with  the  rule 
of  law  which  they  announce  there  is,  in  most  instances,  a  state 
of  facts  to  which  the  rule  applies.  This  state  of  facts  not  only 
serves,  like  an  object  lesson,  to  interpret  the  meaning  of  the 
rule,  but  forms  a  connecting  link  between  the  rule  and  every 
other  state  of  facts  in  any  degree  resembling  these,  thus  sug- 


§  288         INTERPRETATION    OF  UNWRITTEN   LAW.  271 

gesting  to  the  legal  mind  such  modifications  of  the  rule  as 
reason  and  justice  might  require  in  order  to  adapt  it  to  new 
states  of  fact  varying  in  some  respects  but  not  altogether  from 
the  old.  This  is  the  process  by  which  the  courts  advance 
with  certainty  and  confidence  into  hitherto  untrodden  ground, 
reasoning  by  analogy  from  a  decided  case  to  cases  which  must 
evidently  be  governed  by  rules  differing  from  that  already 
promulgated  just  in  proportion  to  the  difference  between  the 
former  and  the  present  state  of  facts.  The  practical  import- 
ance of  this  process  and  its  influence  upon  the  evolution  of  the 
law  cannot  be  overestimated.  As  every  new  state  of  facts  is 
necessarily  a  development  from  a  former  state  of  facts,  so  does 
the  rule  of  law  which  governs  the  new  facts  grow  out  of  the 
rule  by  which  the  old  facts  were  controlled.  As  the  new  state 
of  facts  comes  into  existence  the  new  rule  of  law,  not  yet 
indeed  discerned  and  formulated,  springs  by  logical  necessity 
out  of  the  ancient  rule,  waiting  to  be  perceived  and  promul- 
gated by  legislative  or  judicial  authority  whenever  the  occasion 
for  it  may  arise.  Thus  the  courts  are  never  without  rules 
which  they  can  apply  to  whatever  cases  may  be  brought  before 
them.  If  no  rule  previously  established  will  adequately  meet 
the  facts,  investigation  properly  conducted  will  disclose  the 
new  rule  which  the  analogies  between  the  former  and  the 
present  facts  evolve  out  of  the  old,  and  enable  the  courts  to 
define,  declare,  and  apply  it  to  the  controversy  which  they 
now  are  to  decide.  The  logical  certainty  of  this  process  and 
the  reliability  of  its  results  depends  upon  the  correctness  of  the 
decision  in  which  the  previous  rule  has  been  directly  promul- 
gated and  the  accuracy  with  which  the  legal  difference  between 
the  old  and  the  new  state  of  facts  is  measured,  (a) 

Read  Austin,  Frag.  pp.  989-1020. 
(«)  28  D.  70. 


§  288.    Of  Judicial  Decisions  as  Interpreters  of  the  Authorita- 
tive Verbal  Expressions  of  the  Unwritten  Law. 
Of  the  judicial  decisions  contained  in  the  reports  of  Eng- 
land and  America  many  are  occupied  with  the  interpretation 


272  AMERICAN   JURISPRUDENCE.  §  289 

and  application  of  those  rules  of  the  Unwritten  Law  which 
have  received  authoritative  expression  in  maxims,  definitions, 
and  the  like,  and  to  the  meaning  of  which  their  language, 
therefore,  furnishes  a  controlling  guide.  The  effect  of  these 
decisions,  as  well  as  the  process  by  which  they  are  reached,  is 
different  from  those  just  described  in  reference  to  rules  of  the 
Unwritten  Law  which  are  by  the  decision  of  the  court  not 
simply  interpreted  but  for  the  first  time  declared.  The  method 
and  effect  of  these  decisions  is  the  same  as  if  they  were  devoted 
to  the  construction  of  a  rule  formulated  by  a  legislative  body, 
and  consequently  their  discussion  finds  its  place  hereafter 
when  the  sources  from  which  the  meaning  of  the  Written  Law 
is  to  be  derived  will  be  explained. 


§  289.  Of  Self-Evident  Principles  and  Popular  Customs  as 
Interpreters  of  the  Unwritten  Law, 
In  aid  of  the  foregoing  method  of  ascertaining  and  inter- 
preting the  Unwritten  Law  the  self-evident  and  fundamental 
principles  which  underlie  all  rules  of  law,  and  with  which 
every  rule  of  law  must  necessarily  agree,  may  be  considered, 
both  for  the  interpretation  of  existing  rules  and  as  a  source 
from  which  new  rules  may  be  derived.  The  highly  trained 
legal  reason  and  instinct  of  the  lawyer  who  is  thoroughly 
grounded  in  these  principles  furnishes  one  of  the  best  stand- 
ards by  which  what  the  law  ought  to  be  and  consequently 
what  the  law  must  be  may  be  accurately  judged.  Where  rules 
are  open  to  more  than  one  mode  of  statement  or  more  than  one 
interpretation,  or  where  it  is  doubtful  which  of  two  or  more 
conflicting  rules  truly  represents  the  law,  a  comparison  of  their 
respective  probable  results  if  carried  into  practical  operation 
discloses  which  is  most  in  harmony  with  public  policy  or  the 
principles  and  purposes  of  civil  government,  and  therefore 
which  must  be  the  true  expression  and  interpretation  of  the 
law.  (a)  The  custom  of  the  people  acting,  as  they  suppose,  in 
accordance  with  the  law  may,  when  the  custom  is  evidently 
reasonable,  just,  and  beneficial,  give  to  the  law  its  real  intent 
and  meaning,  sinre  the  custom   of  the  people  is,  to  a  large 


§§  290,  291      INTERPRETATION  OF  UNWRITTEN  LAW.       270 

extent,  the  source  of  the  Unwritten  Law,  and  what  it  may 
create  it  can,  of  course,  construe. 

Read  Ram,  Leg.  J.  Ch.  i,  ii,  iv,  vi,  vii,  xvii. 
(«)  166  U.  S.  290  (340). 


§  290.  Of  the  Writings  of  Jurists  as  Interpreters  of  the  Un- 
written Law. 
The  writings  of  jurists  learned  in  the  law  afford  a  further 
guide  to  its  rules  and  their  interpretation.  Not  every  judge 
who  writes  opinions,  not  every  text-book  author  even  if  of 
exuberant  fertility,  is  an  authority  in  whom  the  student  of 
the  law  can  safely  place  his'  trust.  But  where  such  writers 
have  demonstrated  their  ability  to  grasp  great  principles  and 
draw  from  them  their  logical  conclusions,  to  analyze  and  dis- 
tinguish cases,  to  comprehend  states  of  fact  and  their  analo- 
gies, to  weigh  and  compare  authorities,  in  a  word,  to  be 
competent  investigators  as  well  as  intelligible  reciters  of  the 
law,  their  opinions  are  often  of  the  highest  value;  although 
of  few  of  them  can  it  be  stated  as  Lord  Chief  Justice  Hobart 
said  of  Littleton  on  Tenures:  "The  sayings  of  Mr.  Littleton 
are  adjudged  for  law  and  are  judgments." 
Read  Markby,  §§  101-103. 


§  291.  Of  the  Reciprocal  Interpretative  Value  of  Cognate 
Branches  of  Law. 
The  relations  between  the  different  branches  of  the  law  are 
such  that  an  examination  of  the  rules  embraced  in  one  may 
often  throw  light  upon  the  nature,  scope,  and  meaning  of  the 
rules  pertaining  to  another.  There  is  a  certain  analogy  and 
also  an  antithesis  between  the  law  of  torts  and  the  law  of 
crimes,  between  the  law  of  personal  property  and  the  law  of 
real  property,  between  the  law  of  contract  and  the  law 
of  family  rights,  and  the  rules  of  either  may  thus  tend  to 
show  what  those  of  the  other  ought  or  ought  not  to  be.  In 
the  same  manner  the  laws  of  foreign  States  of  kindred  politi- 
cal theories  and  traditions,  the   condition  of   whose  people 

18 


274  AMERICAN   JURISPRUDENCE.  §  292 

does  not  differ  materially  from  our  own,  illuminate  and  in- 
dicate our  law  by  virtue  of  the  presumption  that  universal 
human  wisdom  will  in  similar  circumstances  dictate  similar 
rules.  Thus  have  the  Unwritten  Laws  of  England  and 
America  since  the  separation  of  the  colonies  from  the  mother 
country  continually  enriched  themselves  from  one  another, 
and  among  all  civilized  nations  the  process  is  in  some  degree 
in  constant  operation.  The  influence  which  the  Civil  Law  of 
Rome  has  exercised  upon  our  own  within  the  present  century 
has  been  exerted  chiefly  in  this  manner,  our  courts  and  jur- 
ists borrowing  unhesitatingly  from  it  whenever  the  foregoing 
methods  of  interpretation  left  in  doubt  the  character  and 
meaning  of  our  own  Unwritten  Law. 


§  292.    Of  Finality  in  the  Interpretation  of  the  Unwritten  Law. 

The  declaration  and  interpretation  of  a  rule  of  the  Unwrit- 
ten Law  reaches  no  final  result  until  the  rule  receives  a  per- 
manent verbal  form  either  by  its  enactment  as  a  statute  or 
by  its  universal  and  continued  recognition  as  a  maxim  or  a 
definition  of  the  Unwritten  Law.  Up  to  that  time  the  rule 
is  subject  to  reannouncement,  and  to  enlarging  or  restrictive 
interpretations,  as  different  judicial  officers  may  be  affected 
in  different  ways  or  to  a  different  extent  by  the  considera- 
tions heretofore  discussed.  The  uncertainty  as  to  the  scope 
and  application  of  the  rule  which  this  implies  is  more  than 
compensated  for  by  the  perfection  in  which  such  a  prolonged 
and  critical  elaboration  of  the  rule  results,  and  by  its  flexi- 
bility until  such  perfection  is  attained.  A  court  confronted 
svith  a  rule  which  it  can  legitimately  and  logically  expand, 
contract,  or  modify  to  fit  the  justice  of  the  case  at  bar,  offers 
a  happy  contrast  to  a  court  whose  only  rule  is  fixed  in  per- 
manent, unequivocal  language,  within  whose  natural  meaning 
it  must  find  the  law  appropriate  to  the  facts,  or  leave  the 
case  unjudged. 


§§  293,  294      INTERPRETATION   OF   WRITTEN  LAW.         275 

SECTION   II. 

OF    TE1E    INTERPRETATION    OF    THE   WRITTEN   LAW. 

§  293.  Of  the  Function  of  Interpretation  in  reference  to  the 
"Written  Law. 
A  rule  of  law  once  clothed  in  authoritative  words  super- 
sedes all  unauthoritative  statements  of  the  rule,  and  thence- 
forth becomes,  according  to  its  true  verbal  interpretation,  the 
only  rule  upon  the  point  which  it  assumes  to  cover.  If  the 
words  are  susceptible  of  but  one  meaning,  that  meaning  fixes 
the  precise  limits  of  the  rule,  (a)  If  the  words  have  no  mean- 
ing, or  if  their  only  possible  meaning  renders  the  rule  as 
stated  utterly  absurd  and  impracticable,  the  rule  is  null  and 
void.  But  where. the  words  are  capable  of  two  or  more  in- 
terpretations, between  which  a  selection  must  be  made  in 
order  to  determine  the  scope  and  application  of  the  rule,  an 
exercise  of  judicial  powers  becomes  necessary  whereby  that 
meaning  of  the  rule  which  accurately  expresses  the  legisla* 
tive  will  may  be  ascertained  and  authoritatively  declared. 

Read  Black.  Ch.  iii,  §§  24-28. 

00  130  U.  S.  662;  55  D.  376;  175  U.  S.  414  (419-421), 


§  294.    Of  the  Interpretation  of  Ordinary  Words. 

The  words  of  a  law  are  to  be  interpreted  according  to  their 
common  acceptation  by  the  people  of  the  State  at  the  time  of 
their  enactment  or  other  authoritative  expression.  This  rule 
is  based  on  the  self-evident  truth  that  as  the  legislative 
authority  has  employed  these  words,  as  a  means  of  conveying 
to  the  people  a  knowledge  of  its  will,  it  must  have  chosen 
them  because,  as  commonly  understood  by  the  people,  they 
expressed  its  will.  If  the  words  thus  interpreted  are  (dear, 
the  interpreter  cannot  go  beyond  them.  They  constitute  the 
law;  nothing  can  be  added  to  them  nor  subtracted  from 
them.  The  operation  of  the  law  extends  to  whatever  its  let- 
ter may  embrace,  but  matters  not  within  the  letter  are  not 
within  its  spirit,   nor  can  the  interpreter  inquire    into   its 


276  AMERICAN  JURISPRUDENCE.         §§  295,  296 

•wisdom  or  utility  or  into  the  motives  of  the  legislative  body 
which  prescribed  it.  That  legislative  body  had  the  power 
to  make  the  law  as  it  has  made  it;  it  is  presumed  to  have 
intended  just  exactly  what  it  has  expressed;  and  therefore 
the  interpreter  can  have  no  other  duty  but  to  give  its  lan- 
guage full  effect,  (a) 

Read  1  Bl.  Com.,  p.  59  ;  1  Kent,  Lect.  xx,  pp.  462,  463  ;  Black, 

Ch.  v,  §  56. 
(a)  58  D.  272  ;  63  D.  139  ;  71  D.  559  (563)  ;  74  D.  522, 

note;  94  D.  115  (116,  117);  16  How.  251. 


§  295.    Of  the  Interpretation  of  Technical  Words. 

Technical  words,  or  those  peculiar  to  some  science,  art,  or 
trade,  or  intended  and  understood  to  be  used  by  the  legisla- 
tive body  in  a  special  sense,  are  to  receive  the  meaning  which 
their  technical  character  requires.  This  meaning  may  be 
ascertained  from  persons  familiar  with  the  art  or  trade  or 
science  to  which  the  words  pertain,  or  from  books  relating 
to  the  subject,  or  from  the  contemporaneous  circumstances 
which  indicate  the  purpose  of  the  legislative  body  in  select- 
ing these  particular  words  in  which  to  formulate  its  will. 

Read  Black,  Ch.  v,  §§  57-58. 


§  296.  Of  the  Interpretation  of  Ambiguous  Words  by  the 
Context. 
AY  here  any  of  the  words  in  which  a  rule  of  law  is  clothed 
are  ambiguous,  recourse  must  be  had  to  extrinsic  standards 
to  ascertain  their  true  interpretation.  The  first  of  these  to 
be  resorted  to  is  the  context.  Every  word  of  a  law  bears  to 
every  other  word  of  the  law  the  relation  of  context,  and  may 
serve  as  an  aid  to  the  elucidation  of  its  meaning,  (a)  Some- 
times a  rule  of  law  expressly  defines  its  own  words,  and  in 
such  a  case  these  definitions  determine  the  interpretation  of 
the  words.  Where  in  any  portion  of  a  law  the  meaning  of 
a  given  word  is  obvious  it  must  have  the  same  meaning  wher- 


§  296  INTERPRETATION   OF   WRITTEN   LAW.  277 

ever  else  in  the  law  it  may  occur,  unless  there  is  some  mani- 
festation of  a  legislative  intent  to  bestow  upon  it  a  different 
meaning.  Doubtful  words  may  be  explained  by  other  words 
with  which  they  are  grammatically  connected,  as  adjectives 
by  their  nouns  or  nouns  by  their  verbs.  General  words  may 
be  restricted  by  particular  ones  which  are  used  elsewhere  in 
the  same  rule  as  their  equivalents,  and  narrow  words  may  be 
enlarged  by  broader  ones  when  evidently  intended  to  express 
the  same  ideas,  (b)  But  an  indefinite  general  expression  fol- 
lowing a  particular  and  definite  one  never  extends  its  opera- 
tion, nor  is  interpreted  to  include  things  or  persons  of  superior 
dignity,  value,  or  jurisdiction  to  those  particularly  named. 
Thus  the  phrases  "dogs  or  other  animals,"  "yachts  and  other 
vessels,"  "haywards  and  other  officers,"  "idiots  or  other  per- 
sons," refer  only  to  dogs,  yachts,  haywards,  and  idiots,  and 
do  not  embrace  any  other  and  higher  animals,  vessels,  offi- 
cers, or  persons  within  the  meaning  of  the  law.(c)  More- 
over, the  entire  rule  of  law  must  be  considered,  and  all  its 
words  and  necessary  implications  must  receive  such  an  inter- 
pretation as  to  render  its  construction,  as  a  whole,  harmoni- 
ous and  consistent.  (d)  Language  which  in  its  literal  meaning 
would  make  the  rule  impracticable  or  absurd,  or  would  defeat 
the  evident  intention  of  the  rule,  must  be  presumed  to  have 
been  used  in  some  other  one  of  its  possible  applications. 
Thus  "may"  which  ordinarily  implies  only  permission  means 
"shall"  or  "must"  in  rules  of  law  which  impose  duties  upon 
public  officers  or  affect  public  interests  or  the  rights  of  third 
persons;  while  "shall"  though  mandatory  in  ordinary  use 
becomes  directory  only  if  no  right  or  benefit  depends  upon 
the  act  described,  (e) 

Read  1  Bl.  Com.,  pp.  88,  89;  1  Kent,  Lect.  xx,  p.  40:2 :  Black, 
Ch.  iii,  §§  32-40,  Ch.  v,  §§  59-69,  Ch.  vi.  §§  74.  75, 
82,  84,  Ch.  xiii,  §§  130-134. 

(a)  9G  U.  S.  153  (159,  160). 

(6)  36  D.  723 ;  120  U.  S.  678  (690-692). 

(c)   13  Wall.  162  ;  2  St.  373. 

\d)  58  I).  389. 

(<?)   15  D.  464. 


£78  AMERICAN   JURISPRUDENCE.         §§  207,  298 

§  297.  Of  the  Interpretation  of  Ambiguous  Words  by  the 
Title,  Preamble,  Provisos,  or  Punctuation. 
The  title  and  preamble  of  a  statute,  as  well  as  its  chapter 
and.  section  headings,  though  no  part  of  the  rule  of  law  and 
unable  to  restrict  or  extend  its  positive  provisions,  may  still 
have  an  interpretative  value  when  in  spite  of  the  investigation 
of  the  context  the  statute  as  a  whole,  remains  obscure,  (a) 
Resort  may  also  be  had  to  its  mode  of  punctuation,  although 
this  is  usually  of  slight  importance,  the  punctuation  being 
determined  by  the  sense  rather  than  the  meaning  by  the 
punctuation.  (l>)  Where  the  enacting  clauses  are  coupled  with 
provisos,  these  may  modify  but  can  neither  extend  nor  repeal 
the  enacting  clauses  and  must  be  confined,  if  possible,  to  what 
immediately  precedes  them.  (c) 

Read  1  Bl.  Com.,  p.  89;  1  Kent,  Lect.  xx,  pp.  460-461;  Black, 

Ch.  vi,  §^  76-81,  Ch.  x,  §§  107-112. 
(a)  30  D.  574  ;  41  St.  304 ;  2  Cranch,  358  (3S6) ;  3  Wheat. 

610  (631) ;  5  Wall.  107  ;  143  U.  S.  457  (462,  463); 

23  D.  471  (473,  474);  46  D.  100  (102,  103);  15  D. 

633. 
(&)   105  U.  S.  77  (84,  85). 
(c)   15  Pet.  141  (165)5  15  Pet.  423. 


§  298.    Of  the  Interpretation  of  Ambiguous  Words  by  Statutes 
In  Pari  Materia. 

A  rule  of  law  is  its  own  best  interpreter,  and  unless  it  proves 
insufficient  for  the  purpose  no  exterior  aid  can  be  employed. 
Where  it  is  insufficient  recourse  must  next  be  had  to  other  rules 
of  law  tn  pari  materia,  that  is,  relating  to  the  same  subject. 
Here  opens  usually  a  wide  field  for  investigation.  All  the 
rules  of  the  Unwritten  Law  and  all  the  provisions  of  the 
Constitutions,  treaties,  and  statutes  relating  to  the  same  sub- 
ject are  in  pari  materia,  whether  they  are  general  or  special  in 
their  application,  whether  they  are  prior  or  subsequent  to  the 
rule  of  law  under  consideration,  whether  they  are  now  current 
or  have  been  repealed,  (a)  Emanating  from  the  same  political 
authority  they  are  all  of  equal  force  and  taken  together  they 
constitute  but  one  law  which  must,  if  possible,  be  so  interpreted 


§  299  INTERPRETATION    OF    WBITTEN    LAW.  279 

as  to  be  at  all  times  consistent  with  itself.  For  the  purpose 
of  interpreting  the  ambiguous  words  of  any  portion  of  this 
law,  all  the  other  portions  may  be  regarded  as  a  context.  The 
same  meaning  which  attaches  to  them  in  that  portion  of  the 
law  in  which  they  first  appeared  follows  them  through  all 
their  subsequent  appearances  unless  a  contrary  intent  is 
evident ;  and  where  the  courts  have  once  construed  a  term  or 
phrase,  the  same  construction  is  given  to  it  whenever  it  is 
afterwards  employed,  (b)  Should  all  these  laws  be  gathered 
into  one  and  in  this  form  be  re-enacted  by  the  legislature  as  a 
partial  code  or  a  Revision,  although  the  original  rules  would 
be  thereby  repealed,  the  policy  and  meaning  of  the  law  would 
not  be  changed  unless  expressly  so  declared,  and  in  interpreting 
the  law  in  its  new  form  the  prior  laws  would  still  be  taken  as 
a  guide,  (c) 

Read  1  Bl.  Com.,  p.  60  ;  1  Kent.  Lect.  xx,  pp.  463,  464 ;  Black, 
Ch.  vii,  §  86,  Ch.  xiv.  §§  133-138. 

(a)  38  D.  317(319);  51  D.  746  (750,  751);  10  St.  48,  note; 

41  St.  630;  3  How.  556;  109  U.  S.  556  (561);  121 
T.  s.  278. 

(b)  3  D.  265;  22  D.  203;  34  D.  116  (117,  118);  62  D. 

714;  98  U.  S.  440. 

(c)  15  D.  156;  100  U.  S.  508;  110  IT.  S.  619  (628,  629). 


§  299.  Of  the  Interpretation  of  Ambiguous  Words  by  Judicial 
Decisions.  Popular  Custom,  or  General  Opinion. 
If  what  the  legislative  authority  of  the  State  has  formally 
prescribed  in  reference  to  the  subject-matter  of  a  rule  of  law- 
does  not  remove  all  doubt  as  to  the  verbal  meaning  of  the 
rule,  the  general  opinion  or  custom  of  the  people  or  the  judg- 
ment of  the  courts  concerning  it  may  be  considered.  When 
the  statute  of  a  State  has  once  been  authoritatively  interpret)  il 
by  the  highest  judicial  tribunal  of  that  State  the  interpretation 
becomes  part  of  the  statute  and  it  must  thereafter  be  held  to 
mean  precisely  what  the  court  lias  rims  declared.  When 
courts  of  other  States  apply  this  statute,  not  as  their  own  law. 
but  as  the  law  of  the  state  where  it  lias  been  interpreted,  they 


280  AMERICAN   JURISPRUDENCE.  §  300 

cannot  give  it  any  other  meaning  but  must  follow  that  which 
it  has  already  received.  When  other  States  adopt  this  law 
into  their  own  they  adopt  also  its  construction,  but  not  the 
additions  or  interpretations  which  may  be  subsequently  made. 
Thus  English  statutes  re-enacted  in  this  country  after  their 
meaning  has  been  settled  by  the  British  courts,  or  statutes 
of  a  State  adopted  by  the  United  States  and  made  Acts  of 
Congress,  have  the  same  meaning  which  the  English  courts  in 
one  case  or  the  State  courts  in  the  other  may  have  given 
them.  («)  When  no  judicial  interpretation  of  a  statute  has 
yet  been  attempted  the  mode  in  which  it  has  been  understood 
and  applied  by  public  officers  and  the  people  of  the  State  may 
answer  the  same  purpose.  (l>)  While  public  usage  cannot 
alter  the  law,  it  furnishes  evidence  of  the  construction  given 
it  by  those  to  whom  it  was  prescribed  and  by  whom  it  must  be 
presumed  to  have  been  properly  understood  and  faithfully 
observed.  (<:•)  The  universal  contemporaneous  interpretation 
given  to  a  law  by  those  whose  duty  it  was  to  execute  it  or  obey 
it  is  thus  justly  regarded  as  among  the  most  reliable  indications 
of  its  true  intent  and  meaning,  (d) 

Read  Black,  Ch.  v,  §  70,  Ch.  vii,  §§  85,  88-90,  Ch.  xvi,  §§  142- 
145. 
(«)  8  St.  643  (645) ;  32  St.  656,  note ;  42  St.  627  (638) ; 
84  D.  582;  5  Pet.  264:  133  U.  S.  216;  161  U.  S. 
591. 

(b)  46  D.  447  (449-451)  ;  110  U.  S.  219  ;  142  U.  S.  615. 

(c)  26  D.  379. 

(rf)  19  D.  722;  107  U.  S.  402;  114  U.  S.  411;  124  U.  S. 
236. 


§  300.  Of  the  Interpretation  of  Ambiguous  Words  by  the 
Apparent  Intent  of  the  Legislative  Body  in  Employ- 
ing Them. 

The  essence  of  a  law  is  the  legislative  intent  which  it  em- 
bodies, and  its  words  interpreted  by  the  context  and  by  other 
laws  on  the  same  subject,  or  by  the  courts  or  even  by  the 
common  opinion  of  the  people,  are  supposed  to  manifest 
clearly  that  intent.     But  it  is  possible  that  with  all  these  aids 


§  300  INTERPRETATION    OF    WRITTEN    LAW.  281 

the  words  may  still  be  obscure  and  that  it  may  be  necessary 
to  look  to  the  intent  through  other  media  in  order  to  ascertain 
the  meaning  of  the  words.  Amoug  these  media  are  certain 
legal  presumptions,  the  circumstances  attending  the  enactment 
of  the  law,  and  its  apparent  general  purpose  and  effect. 
Some  things  a  legislative  body  is  presumed  not  to  intend. 
These  are:  to  transcend  its  legislative  powers,  to  prescribe 
laws  which  are  unconstitutional  or  absurd  or  unjust  or  con- 
trary to  the  fundamental  principles  of  the  social  compact,  to 
impose  legal  obligations  or  liabilities  upon  the  State,  to  limit 
the  authority  of  future  legislatures,  to  give  protection  to  fraud, 
to  alter  the  jurisdiction  of  the  courts,  or  unnecessarily  change 
the  existing  laws.  Its  legislative  acts  must  be  interpreted  in 
harmony  with  these  presumptions,  unless  the  unmistakable 
language  of  its  laws  compels  a  contrary  construction.  Again, 
the  occurrences  which  attended  the  enactment  of  the  law  may 
more  or  less  reveal  the  attitude  of  the  legislative  mind  toward 
its  various  provisions.  The  minds  of  individual  legislators 
are  not  the  legislative  mind  and  their  utterances  in  speeches 
and  debates  have  little  bearing  on  this  question,  (a)  But  the 
contemporaneous  circumstances  relating  to  the  proposal  of  the 
law  for  legislative  action,  its  history,  its  amendments,  and 
final  adoption,  as  these  appear  upon  the  authenticated  journals 
of  the  legislature  may  be  consulted,  and  from  them  conclusions 
may  be  drawn  as  to  the  ideas  which  its  language  was  intended 
to  convey,  (b)  The  legislative  intent  thus  ascertained  gives 
their  true  meaning  to  the  words,  restricts  them  when  too 
general,  extends  them  when  too  narrow,  defines  them  when 
uncertain,  (c)  Cases  within  the  spirit  of  the  law  but  not 
within  its  letter  are  made  subject  to  its  operation,  and  cases 
not  within  its  spirit  but  to  which  its  letter  might  apply  are 
excluded  from  its  influence.  (</)  Again,  the  general  purpose 
and  effect  of  the  law  as  a  whole,  the  mischief  it  was  expected 
to  suppress,  the  benefit  it  was  supposed  to  confer,  the  subject- 
matter  which  it  undertakes  to  regulate,  the  natural  consequen- 
ces which  attend  its  practical  application,  considered  in  con- 
nection with  the  presumed  intention  of  the  legislature  to  enact 
just,  reasonable,  and  useful  laws,  may  indicate  the  meaning 


282  AMERICAN   JURISPRUDENCE.  §  301 

which  the  legislative  mind  must  have  endeavored  to  express 
and  give  its  language  an  interpretation  consistent  with  the 
purpose  which  the  law  was  evidently  intended  to  fulfil,  (e) 

Read  1  Bl.  Com.,  pp.  60,  61 ;  1  Kent,  Lect.  xx,  p.  465;  Black, 
Ch.  iii,  §§  29-31,  Ch.  iv,  §§  41-55,  Ch.  vii,  §§  87, 
91-93. 

(a)  58  D.  589 ;  3  How.  9  (24)  ;  91  U.  S.  72;  166  U.  S. 
290. 

(&)   148  U.  S.  490;  23  Wall.  307. 

(c)  99  U.  S.  48;  3  How.  556  (564,  565)  ;  144  U.  S.  47. 

(d)  12  St.  819,  note;  54  D.  639;  69  D.  181. 

(e)  25  D.  677  (678,  679)  ;  43  St.  127  (131)  ;  7  Wall.  482; 

93  U.  S.  634 ;  171  U.  S.  30. 


§  301.    Of    the   Rule   that   Certain    Statutes   must    be   Strictly 
Interpreted. 

In  further  aid  of  the  foregoing  methods  of  ascertaining  the 
meaning  of  a  law  there  is  a  positive  but  reasonable  rule  that 
laws  of  certain  classes  shall  be  strictly  interpreted  while  laws 
of  other  classes  shall  be  liberally  construed.  A  strict  inter- 
pretation, in  this  sense  of  the  phrase,  excludes  from  the  opera- 
tion of  the  law  everything  which  is  not  clearly  embraced 
within  its  letter.  "When  liberally  construed  the  letter  is  en- 
larged, if  necessary,  to  meet  the  general  intent  and  purpose 
of  the  law.  The  laws  to  which  a  strict  interpretation  must 
be  given  are  these:  (1)  Penal  laws,  or  those  which  impose  a 
penalty  in  favor  of  the  public  upon  a  person  guilty  of  a  public 
wrong ;  and  these  must  be  so  construed  in  favor  of  the 
alleged  offender  as  not  to  subject  him  to  the.  penalty  unless  he 
comes  within  the  necessary  meaning  and  intent  of  the  law  (a) ; 
(2)  Laws  entailing  forfeitures  or  punitive  damages,  or  in 
derogation  of  the  customary  rights  of  security,  liberty,  or 
property  ;  these  if  possible  must  be  interpreted  to  prevent  the 
forfeiture  and  preserve  the  right ;  (3)  Laws  in  derogation  of 
any  right  existing  under  the  Unwritten  Law  ;  these  are  not 
to  be  suffered  to  suspend  or  modify  the  right  beyond  the 
requirements  of  the  letter  of  the  law  (b)  ;  (4)  Laws  conferring 


§  801  LNTERPKETATION    OF    WRITTEN    LAW.  283 

police  powers  on  public  officers  by  virtue  of  which  they  are 
enabled  to  interfere  peremptorily  with  persons  and  property 
in  order  to  protect  the  public  health  and  safety  ;  and  these 
can  never  be  extended  to  cases  not  specifically  mentioned  in 
the  law  (r)  ;  (5)  Laws  exempting  special  persons  from  general 
liabilities  or  imposing  special  liabilities  upon  particular  indi- 
viduals (d)  ;  (6)  Laws  in  pursuance  of  the  sovereign  rights  of 
taxation  and  eminent  domain  ;  (7)  Laws  creating  monopolies 
or  other  exclusive  privileges ;  these  are  to  be  construed  most 
strongly  against  the  grantee  ;  (8)  Laws  delegating  or  surren- 
dering or  suspending  governmental  powers  (e)  ;  (9)  Laws 
conferring  the  right  to  sue  the  State  ;  (10)  Laws  instituting 
statutory  remedies  or  proceedings,  or  in  any  manner  affecting 
the  jurisdiction  of  the  courts  (/)  ;  (11)  Laws  having  a  possi- 
ble retrospective  operation ;  these  are  to  be  confined  to  cases 
clearly  within  the  words  of  the  law  (<y)  ;  (12)  Laws  apparently 
repealing  previous  laws  ;  these  are  not  supposed  to  operate 
as  a  repeal  beyond  the  irreconcilable  repugnancy  between  the 
old  law  and  the  new  ;  (13)  Laws  specially  enacted  to  promote 
some  private  interest  or  remove  some  private  disability ; 
these,  like  other  concessions  of  the  sovereign,  are  limited  to  the 
words  and  necessary  implications  of  the  grant ;  (14)  Provisos 
restricting  the  enacting  clauses  of  statutes,  except  in  penal 
statutes  where  a  strict  construction  of  the  entire  law  as  a 
whole  may  require  that  the  proviso  should  be  liberally  in- 
terpreted. 

Read  1   Bl.  Com.,  p.  88;    Black.  Ch.  ix,  §§  100-104,  Ch.  xi, 
§§  113-116,  119-122. 
(o)    18  St.  800;   lo  D.  LOO;  71   D.  522;  10  St.  23,  note; 

6  Wall.  385  (395,  396)  \  L34  U.  S.  624  (628,  629). 
(/,)  97  1).  125. 

(c)  123  I".  S.  623. 

(d)  18  Wall.  206  (/J?:.,  226);  116  U.  S.  665. 
(.  )   138  U.  S.  287. 

(/)  8  Wall.  51  ;  97  U.  S.  659. 

(g)  87  1).  240;   88  D.  622;  17  Wall.  596;  20  Wall.  179 
(187). 


284  AMERICAN   JURISPRUDENCE.        §§  302,  303 

§  302.  Of  the  Rule  that  Certain  Statutes  must  be  Liberally 
Interpreted. 
The  rule  of  liberal  construction  applies  to  all  remedial  legis- 
lative acts,  to  which  class  a  large  proportion  of  all  laws  be- 
long. Such  acts,  being  intended  to  remove  existing  obstacles 
to  public  welfare,  are  to  be  given  their  full  force  and  effect  in 
view  of  the  nature  of  the  evil,  the  causes  of  the  inability  of 
the  former  law  to  cope  with  it,  and  the  character  of  the  rem- 
edy which  the  new  law  apparently  endeavors  to  apply.  So 
far  as  the  language  of  the  law,  without  violence  to  its  plain 
and  necessary  signification,  can  be  interpreted  to  cover  the 
purpose  of  the  legislative  body,  it  must  be  done,  (a)  Words 
used  in  an  erroneous  sense  must  be  corrected,  superfluous  and 
misleading  words  must  be  eliminated,  and  necessary  omitted 
words  must  be  supplied,  until  its  language,  as  interpreted,  be- 
comes intelligible  and  complete  according  to  the  measure  of 
the  spirit  of  the  law.  But  no  interpretative  process,  however 
liberal,  can  make  or  change  a  law.  A  clear  rule  of  a  legisla- 
tive body  stands  precisely  as  it  is  expressed,  neither  narrowed 
by  a  strict  nor  extended  by  a  liberal  construction,  (b) 

Read  1  Bl.  Com.,  pp.  87,  88;  1  Kent,  Lect.  xx,  p.  465;  Black, 
Ch.  ix,  §§  105,  106,  Ch.  xi,  §§  117,  118. 
(«)  21  D.  608. 
(b)  51  D.  142;  22  How.  290;  130  U.  S.  662. 


§  303.  Of  the  Applicability  of  the  Foregoing  Rules  to  all  Ver- 
bal Forrns  of  Law. 
The  foregoing  methods  of  interpretation  are  applicable  to  all 
rules  of  law  which  have  received  a  permanent  and  authorita- 
tive verbal  form,  so  far  as  the  extrinsic  facts  exist  from  which 
conclusions  as  to  them  may  be  derived.  All  of  them  are  use- 
ful and  most  of  them  are  available  for  the  construction  of 
statutes,  many  of  them  for  the  interpretation  of  Constitutions 
and  treaties,  and  of  the  maxims  and  definitions  of  the  Un- 
written Law.  (a)  Few  rules  of  law  have  a  context  so  meagre, 
are  so  isolated   in  subject-matter,  so  peculiar  in  purpose,  so 


§  303  INTERPRETATION   OF   WRITTEN    LAW.  285 

untried  in  application,  that  some  guide  cannot  be  found  to 
their  true  meaning,  unless  they  are  so  unintelligible  as  to  be 
altogether  void. 

Read  Black,  Ch.  ii,  §§  7-23;  2  Whart.  I.  L.  Dig.  §  133. 
(a)  100  U.  S.  483 ;  133  U.  S.  258. 


286  AMERICAN   JURISPRUDENCE.  8  304 


CHAPTER   X. 

OF   THE  APPLICATION    OF  LAW. 

§  304.    Of  the  Practical  Administration  of  Law. 

The  law  becomes  an  active  social  force  through  its  practical 
application  to  the  conduct  and  affairs  of  men.  Its  enactment 
and  interpretation  leave  it  still  an  abstract  rule,  a  standard 
and  expression  of  rights  and  duties,  bat  inoperative  either  to 
protect  the  one  or  to  enforce  the  other.  The  abstract  rule 
must  be  transmuted  into  life  and  be  embodied  in  actions  and 
forbearances  before  society  can  reap  its  benefits  or  the  pur- 
poses for  which  it  is  ordained  can  be  accomplished.  The 
agencies  through  which  this  practical  application  of  the  law 
is  made  are  these :  (1)  The  people  of  the  State  at  large  ;  (2) 
Its  legislative  bodies  ;  (3)  Its  executive  officers  ;  (4)  Its  courts. 
Of  these  the  latter  is  to  the  student  of  law  the  most  im- 
portant, and  the  only  one  here  requiring  an  extended  notice. 
Undoubtedly  by  far  the  greater  number  of  instances  in  which 
the  rules  of  law  are  practically  applied  occur  in  the  sponta- 
neous, unintermitting  correspondence  of  the  conduct  of  well 
disposed  and  intelligent  citizens  with  the  rules  of  action  estab- 
lished by  the  State.  Legislative  bodies  in  the  performance  of 
their  constitutional  functions  carry  into  effect  a  portion  of  the 
laws  they  have  themselves  prescribed.  Executive  officers  in 
all  departments  of  the  government  are  constantly  engaged  in 
interpreting  and  applying  the  rules  by  which  their  various 
official  acts  are  governed.  But  though  the  sphere  occupied 
by  these  three  agencies  is  vastly  greater  than  that  filled  by 
the  courts,  and  is  of  special  interest  to  the  statesman  and 
economist,  yet  it  is  in  the  courts  that  through  the  open  re- 
dress and  punishment  of  wrongs  the  laws  defining  and  assert- 
ing rights  and  imposing  their  correlative  duties  are  publicly 
expounded  and  their  sanctions  visibly  and  irresistibly  applied. 


§  305  COURTS   IN   GENERAL.  287 

The  courts  are  the  common  ground  on  which  the  State  and  the 
citizen  meet  together,  the  one  to  exert,  the  other  to  submit  to, 
that  supreme  political  authority  which  is  expressed  in  the 
enactment  and  enforcement  of  the  laws ;  and  as  historically 
the  law  has  been  developed  in  all  its  elaborate  details  from 
crude  and  general  ideas  through  the  action  of  the  courts  in 
applying  remedies  to  wrongs,  so  are  they  still  the  source  from 
which  the  lawyer  and  the  citizen  must  derive  their  knowledge 
and  imbibe  their  spirit  of  obedience  to  the  law. 


SECTION   I. 

OF    COURTS    IN    GENERAL. 

§  305.    Of  the  Nature  of  Courts. 

A  court  is  a  tribunal  created  by  the  State  for  the  decision 
of  controversies  concerning  legal  rights  and  for  the  preven- 
tion, redress,  or  punishment  of  legal  wrongs,  (a)  It  consists 
of  one  or  more  judges  together  with  such  other  officers,  clerks, 
sheriffs,  jurors  and  the  like  as  may  be  necessary  for  the 
transaction  of  its  business  according  to  law.  (6)  It  originates 
in  a  constitutional  provision  or  statute  of  the  State  by  which 
its  authority  is  conferred  and  its  powers  are  defined. (c)  It 
exists  as  a  court  only  while  its  necessary  members  are  as- 
sembled and  in  actual  session  at  the  time  and  place  prescribed 
by  law.(rf)  It  can  take  judicial  action  only  upon  a  contro- 
versy between  contesting  parties  presented  to  it  in  due  form 
of  law  for  its  adjudication. (e)  Tribunals  of  this  character 
are  said  to  have  been  organized  in  Egypt  in  prehistoric  ages, 
from  whence  they  were  adopted  into  Athens  prior  to  b.  c. 
1500,  and  have  thence  been  copied  throughout  the  civilized 
world. 

Read  3  Bl.  Com.,  pp.  23-25  ;  Wilson.  Part  ii,  Ch.  iii,  pp.  75-87. 

(a)  35  D.  54  (66  69  . 

(b)  24  I).  517;  20  R.  50;  84  D    114,  note. 

(c)  10  St.  143;  31  St.  350;  118  l\  S.  425(441-449). 
(rf)  86  I).  643  (646);   16  St.  224. 

(0  82  D.  448;  48  D.  349,  note. 


288  AMERICAN   JURISPRUDENCE.         §§  306,  307 

§  306.    Of  the  General  Jurisdiction  of  Courts. 

The  judicial  powers  of  a  court  are  known  as  its  jurisdic- 
tion. Jurisdiction  is  the  authority  to  hear  and  adjudge 
a  controversy  and  to  carry  the  judgment  into  practical 
effect,  (a)  This  jurisdiction  is  conferred  by  the  State  and  is 
defined  by  law.  Over  matters  outside  its  jurisdiction  a  court 
has  no  control,  and  all  its  acts  in  reference  to  such  matters 
are  wholly  void.(7>)  As  to  matters  within  its  jurisdiction  its 
judgments  are  valid  and  are  binding  upon  the  persons  and 
property  concerned.  Jurisdiction  may  be  made  dependent 
either  upon  the  subject  or  the  parties  to  the  controversy,  (c) 
Where  it  depends  upon  the  subject,  no  other  subject  can  be 
brought  within  the  jurisdiction  of  the  court  by  the  agreement 
of  the  parties  or  the  direction  of  the  judge,  (d)  Where  it 
depends  upon  the  parties,  they  may  waive  personal  privi- 
leges exempting  them  from  its  control,  but  cannot  impute  to 
themselves  jurisdictional  qualifications  which  they  do  not 
possess,  (e) 

Read  Cooley,  Const.  Lim.,  Ch.  xi,  pp.  398-413. 

(a)  86  D.  643  (646);  24  St.  366  (369) ;  76  D.  662,  note. 

(b)  47  D.  242  ;  11  St.  808;  1  Pet.  328  (340). 

(c)  12  Pet.  524  (623) ;  17  How.  424 ;  24  How.  195 ;  93 

U.  S.  274;  95  U.  S.  714;  106  U.  S.  350. 

(d)  3  St.  106  :  103  U.  S.  11;  14  St.  138;  22  Wall.  322. 

(e)  72  D.  319  (320) ;  42  St.  121. 


§  307.   Of  the  Special  Jurisdiction  of  Courts. 

Jurisdiction  dependent  upon  the  subject  may  be  condi- 
tioned either  upon  its  character,  its  quantity,  or  its  situa- 
tion. To  some  courts  are  entrusted  controversies  concerning 
crimes,  to  others  controversies  in  reference  to  estates  held  in 
trust  or  to  maritime  torts  and  contracts,  to  others  claims 
within  certain  fixed  limits  of  value,  to  others  litigation  in- 
volving property  within  a  given  territory.  No  State  can 
confer  upon  its  courts  jurisdiction  over  subjects  beyond  its 
own  borders  (a),  nor  can  the  parties  by  any  fictitious  change 
in  the  nature  or  the  quantity  of  the  subject  bring  it  within 


§  308  COURTS   IN   GENERAL.  289 

the  jurisdiction  of  a  court  to  which  it  does  not  legally  be- 
long.^) In  like  manner  jurisdiction  dependent  on  the  per- 
son may  be  conditioned  either  upon  the  status  of  the  person 
or  his  domicile  or  his  temporary  presence  within  the  territo- 
rial jurisdiction  of  the  court.  The  control  of  infants  or  in- 
sane persons  and  their  property,  the  authority  to  determine 
questions  arising  in  the  course  of  official  business,  the  right 
to  decide  controversies  between  the  residents  of  certain  dis- 
tricts, may  vest  in  different  tribunals,  while  any  court  may 
acquire  jurisdiction  over  persons  upon  whom  its  process  may 
be  lawfully  served  within  the  region  to  which  its  judicial 
power  extends,  (c) 

Read  (a)  54  D.  630 ;  79  D.  440 ;  36  St.  750 ;  18  Wall.  350. 

(b)  12  D.  508,  note;  15  D.  (V-'/J. 

(c)  15  D.  39 ;  53  St.  165,  note. 


§  308.    Of  the  Indirect  Jurisdiction  of  Courts. 

Jurisdiction,  whether  dependent  upon  the  person  or  the 
subject,  may  indirectly  affect  subjects  and  persons  over  which 
the  court  has  no  immediate  authority.  When  property  is 
within  its  jurisdiction  it  may  take  cognizance  of  controver- 
sies concerning  it,  although  the  owner  is  beyond  its  reach, 
and  may  deprive  him  of  his  alleged  rights  therein  notwith- 
standing that  the  force  of  its  judgment  is  exhausted  when  the 
property  is  disposed  of  according  to  its  decrees,  (a)  On  the 
other  hand,  when  it  has  jurisdiction  over  the  person  of 
the  owner,  it  may  compel  him  to  employ  or  convey  the  prop- 
erty in  obedience  to  its  orders,  although  the  property  itself 
is  situated  in  a  district  over  which  it  lias  no  control. (/>)  An 
action  may  be  brought  in  any  court  having  jurisdiction  over 
the  subject  and  the  parties.  Where  there  an'  two  or  more 
tribunals  of  identical  authorit}',  the  one  to  which  the  contro- 
versy is  first  submitted  retains  exclusive  jurisdiction  over 
it.(c)  After  a  court  lias  rendered  judgment  in  a  controversy 
its  jurisdiction  over  the  subject  and  the  parties  is  presumed, 
but  this  presumption  is  not  conclusive  and  may  at  any  time 
be  overcome  by  proof  that  the  subject  was  beyond  its  judicial 

19 


290  AMERICAN   JURISPRUDENCE.  §  309 

authority  or  that  the  parties  were  not  legally,  and  could  not 
by  consent  have  placed  themselves,  within  its  jurisdiction,  (rf) 

Read  Story,  Conf .  L.  §  30. 

(a)  10  Wall.  308;  95  U.  S.  714;  7  R.  147;  20  R.  695. 

(b)  16  How.  1  (13);    10  Wall.  464  (475)  ;    94  U.  S.  444 

(448-450). 

(c)  9  Wheat.  532  ;  112  U.  S.  294  ;  47  D.  377;  2  R.  581; 

23  R.  412. 

(d)  10  Pet.  449  ;  18  Wall.  350  (365-368)  ;  83  D.  446,  note  ; 

94  D.  742,  note. 

§  30'9.    Of  the  Inherent  Powers  of  Courts. 

In  addition  to  its  judicial  powers  or  jurisdiction  every 
court  has  certain  inherent  powers  which  are  necessary  to  its 
administration  of  justice  within  its  jurisdiction  and  to  pre- 
vent the  failure  or  abuse  of  its  process.  Among  these  are 
the  power  to  establish  rules  for  the  conduct  of  the  business 
which  may  be  brought  before  it,  and  to  enforce,  repeal,  or 
suspend  them  at  its  discretion  (a) ;  the  power  to  appoint, 
supervise  and  remove  clerks,  attorneys,  and  other  officers  (b); 
the  power  to  make,  preserve,  correct,  and  replace  the  records 
of  its  proceedings  (c) ;  the  power  to  preserve  order  during  its 
sessions;  the  power  to  enforce  its  decrees  (d);  and  the  power 
to  punish  for  contempt.  A  contempt  of  court  is  an  offence 
against  the  sovereignty  of  the  State  as  represented  by  the 
court,  and  consists  in  any  acts  or  words  which  tend  to  dero- 
gate from  the  dignity  of  the  court  or  to  interrupt  the  course 
of  justice,  or  in  wilful  and  pertinacious  disobedience  to  its 
lawful  commands.  Publications  calculated  to  prejudice  the 
people  against  the  court  or  its  judges  or  to  influence  the 
jury  in  a  pending  case,  trifling  with  witnesses  or  jurors, 
attempts  to  mislead  the  court  by  false  averments  in  the 
pleadings  or  to  forestall  its  action  by  obtaining  its  opinion 
on  a  controversy  about  to  be  submitted  to  its  judgment,  a 
breach  of  the  peace  or  other  misconduct  in  the  presence  of 
the  court  or  in  the  place  set  apart  for  its  use  and  that  of  its 
officers,  are  examples  showing  the  nature  of  this  offence.  A 
court  can  proceed  to  try  the  offender  without  a  jury  and  on 


§§  310,  311  COURTS   IN   GENERAL.  291 

its  own  knowledge  of  the  contempt,  and  may  punish  it  by- 
fine  and  imprisonment  to  such  an  extent  as  to  vindicate  the 
dignity  of  the  court  and  secure  obedience  to  its  orders.  Per- 
sons charged  with  contempt  have  a  right  to  purge  themselves 
upon  oath  of  any  intentional  disrespect,  and  this  purgation 
may  be  accepted  by  the  court  in  satisfaction  for  the  offence, 
or  it  may  take  such  further  action  as  the  rights  of  other  par- 
ties and  the  interests  of  public  justice  may  require,  (e) 

Read  (a)  41  St.  634,  note. 

(b)  19  How.  9. 

(c)  12  1).  350,  note  ;  70  D.  100;  73  D.  565-  80  D.  189; 

1  St.  191;  6  St.  587. 
(</)  49  1).  509. 
(e)   90  D.  671,  note;  98  D.  404,  note;   56  R.  360,  note; 

13  Wall.  335;  19  Wall.  505;  107  U.  S.  265;  167 

('.  S.  409;  50  St.  508,  note. 


§  310.    Of  the  Terms  or  Sessions  of  Courts. 

Judicial  functions  can  be  exercised  by  courts  only  while 
they  are  in  actual  session  at  the  times  and  places  and  in  the 
manner  prescribed  by  law.  Proceedings  at  another  time  or 
place  or  in  another  manner,  though  in  the  personal  presence 
and  under  the  direction  of  the  members  of  the  court,  are 
coram  non  judice  and  void.  The  period  fixed  by  law  during 
which  a  court  must  be  in  session  is  called  a  term.  The  term 
begins  on  the  first  day  of  the  prescribed  period,  at  the  hour 
when  the  court  is  organized  and  opened  for  the  transaction  of 
judicial  business,  and  continues  until  the  court  is  formally 
adjourned  without  day.(a)  The  customary  limits  of  the  term 
may  be  extended  when  necessary  by  temporary  adjournments 
until  the  business  of  the  term  is  finished 

Read  (a)   17  1).  365. 

§  311.    Of  the  Proceedings  and  Judgments  of  Courts. 

The  methods  of  investigation  adopted  by  a  court  in  examin- 
ing the  merits  of  a  controversy  and  bhe  mode  in  which  it  reaches 
and  enforces  its  judgments  vary  with  the  character  of  the  court. 


292  AMERICAN   JURISPRUDENCE.  §  312 

The  final  judgment  of  a  court  of  competent  jurisdiction  over 
the  parties  and  the  subject  is  conclusive  upon  the  parties  and 
their  privies  in  reference  to  the  same  subject-matter,  in  any  ac- 
tion in  which  the  same  object  is  sought  and  the  same  questions 
are  raised,  until  the  judgment  is  reversed  or  modified  upon  a 
writ  of  error  or  appeal,  (a)  The  original  demand  concerning 
which  the  controversy  arose  is  merged  in  the  judgment,  and 
no  suit  on  it  can  thereafter  be  maintained,  (b)  The  judgment 
becomes  the  foundation  of  any  future  claim,  and  may  be  di- 
rectly enforced  by  further  process  of  the  court  or  made  the 
subject  of  a  new  suit  to  recover  the  amount  awarded  to  the 
victorious  party,  (c)  A  judgment  cannot  be  collaterally  at- 
tached except  for  want  of  jurisdiction,  or  for  fraud  practised 
by  means  of  it  upon  third  parties  or  by  the  prevailing  party  on 
the  court ;  but  a  direct  proceeding  to  vacate  or  reverse  it  may 
be  instituted  according  to  the  modes  provided  by  the  local 
law.  (d)  The  judgments  of  the  courts  of  one  State  or  sover- 
eignty may  be  made  binding  upon  those  of  other  States  by 
comity  or  constitutional  provisions,  as  is  the  case  between  the 
State  and  Federal  courts  (e),  and  the  courts  of  one  State  of  the 
American  Union  and  the  others  (/"),  or  between  the  courts  of 
a  foreign  nation  and  our  own.  (g) 

Read  Story,  Conf.  L.  §§  584-618  1. 

(a)  39  St.  156 ;  15  St.  138 ;  53  D.  350,  note ;  60  D.  426, 

note  ;  62  D.  546;  41  D.  675;  26  St.  91;  37  St.  228; 

26  D.  131 ;  77  D.  651 ;  81  D.  626,  note. 
(6)   15  D.  78.  note. 

(c)  83  D.  350;  92  D.  410. 

(d)  22  St.  611 ;  23  St.  95  ;  3  St.  616  ;  6  D.  88;  79  D.  244 ; 

21  Wall.  398  (426,  427);  98  U.  S.  61. 

(e)  15  R.  660. 

(/)  44  D.  562;    55  D.  494;   73  D.  683;    169  U.  S.  432 

(459-462). 
(g)  1  D.  316. 


§  312.    Of  Courts  of  Record  and  Courts  not  of  Record. 

Courts  are  divisible  into  courts  of  record  and  courts  not  of 
record.     A  court  of  record  is  a  tribunal   exercising   judicial 


§  313  COURTS   IN    GENERAL.  293 

functions  under  an  authority  from  the  State  which  is  inde- 
pendent of  any  personal  privilege  or  official  power  residing  in 
the  magistrate  appointed  to  hold  it,  proceeding  according  to 
the  provisions  of  the  general  law  of  the  land,  and  recording  its 
determinations  in  official  rolls  whose  statements  import  absolute 
verity  and  cannot  be  contradicted  by  any  evidence,  nor  amended 
except  by  the  order  of  the  court  itself  or  by  a  writ  of  error  or 
an  appeal.  A  court  not  of  record  is  a  tribunal  whose  judicial 
power  is  commensurate  with  that  of  the  person  appointed  to 
hold  it,  of  whose  proceedings  no  official  record  is  kept,  or  whose 
records  are  not  indisputable  but  may  be  examined  both  as  to 
their  existence  and  the  truth  of  their  contents  by  subsecpient 
tribunals.  In  England  the  King's  courts  were  all  courts  of 
record,  the  manor  courts  and  other  courts  of  inferior  jurisdic- 
tion were  courts  not  of  record.  In  this  country,  whether  a 
court  is  of  one  class  or  the  other  depends  upon  the  terms 
of  the  statute  or  the  constitutional  provision  which  creates 
it.  (a) 

Read  3  Bl.  Com.,  pp.  24,  25. 
(a)  31  D.  760. 


§  313.  Of  Courts  of  Superior,  Inferior.  General,  or  Limited 
Jurisdiction. 
Another  division  of  courts  is  into  courts  of  inferior  and 
superior  jurisdiction.  An  inferior  court  is  one  whose  judg- 
ments are  open  to  review  by  a  higher  tribunal  through  some 
form  of  error  or  appeal.  Such  courts  have  no  power  by  impli- 
cation except  what  may  be  necessary  to  the  exercise  of  their 
expressly  granted  powers.  A  court  of  superior  jurisdiction  is 
one  whose  judgments  are  final,  and  whose  jurisdiction  over  all 
matters  upon  which  it  undertakes  to  act,  though  not  expressed, 
is  presumed  until  the  contrary  appears.  This  second  classifi- 
cation of  courts  closely  resembles,  and  in  some  respects  in- 
volves the  same  distinctions  as  the  third,  which  is  into  courts 
of  general  jurisdiction  and  courts  of  limited  jurisdiction.  A 
court  of  general  jurisdiction  is  endowed  with  judicial  author- 
ity over  controversies  of  various  and  indefinite  species,  and 


294  AMERICAN    JURISPRUDENCE.         §§  314,  315 

controversies  of  every  kind  are  presumed  to  be  within  its  ju- 
risdiction unless  they  have  been  specifically  and  exclusively 
entrusted  to  some  other  tribunal.  The  records  of  such  courts 
import  absolute  verity,  and  need  not  contain  recitals  of  the 
facts  upon  which  the  jurisdiction  of  the  court  in  any  given 
case  depends.  A  court  of  limited  jurisdiction  is  one  to  which 
certain  defined  and  enumerated  species  of  controversies  are 
committed.  Over  any  other  cases  it  has  no  jurisdiction,  and 
even  as  to  these  its  records  must  recite  the  facts  on  which  its 
judicial  authority  over  them  is  based,  (a) 

Read  (a)  5  Cfanch,  173;    12  Pet.  657  (718-720);  48  D.  194; 
54  D.  217. 


§  314.    Of  Appellate,  Civil,  Criminal,  or  Provisional  Courts. 

A  superior  court  before  which  the  decision  of  an  inferior 
court  may  be  brought  for  re-examination  and  adjudication  is 
called  an  appellate  court.  A  civil  court  is  one  in  which  the 
prevention  or  redress  of  private  wrongs  is  sought  through 
actions  instituted  by  private  parties  who  apprehend  or  have 
already  suffered  injury.  A  criminal  court  is  one  before 
which  the  State  prosecutes,  in  its  own  name  and  behalf,  per- 
sons who  are  accused  of  public  wrongs.  Provisional  courts 
are  temporary  tribunals  established  by  military  commanders 
in  conquered  territories  pending  the  pacification  of  the  country 
and  the  organization  of  the  customary  courts  of  the  State. 
These  are  courts  of  record  and  may  be  courts  of  general 
jurisdiction. 


§  315.    Of  Legal  Controversies. 

To  every  controversy  submitted  to  a  court  for  its  decision 
there  must  be  at  least  two  parties, — the  claimant  and  his 
antagonist, —  and  this  is  equally  true  whether  the  claim  is 
made  Iry  or  against  the  public,  or  against  an  article  of  prop- 
erty, or  against  a  private  individual.  The  claimant  is  vari- 
ously known  in  different  courts  as  the  plaintiff,  the  petitioner, 
the  libe/lant,  the  proponent,  the  prosecutor,  while  his  antagc- 


§  316  COUUTS    IN    GENERAL.  295 

nist  is  called  tlie  defendant,  the  respondent,  the  lihellee,  the 
opponent;  their  relations  to  one  another  under  all  these  dif- 
ferent names  being  substantially  the  same.  The  methods 
through  which  they  make  known  their  adverse  claims  to  the 
court  are  styled  the  pleadings.  The  examination  of  the 
questions  of  law  and  fact  raised  by  the  pleadings  constitutes 
the  trial,  resulting  in  the  judgment  by  which  the  issues 
between  the  parties  are  determined  and  the  controversy  is 
permanently  settled.  The  number  of  parties  is  not,  however, 
necessarily  confined  to  two.  Controversies  may  arise  in 
which  many  conflicting  interests  may  be  involved,  and  where 
each  must  be  separately  represented  in  order  that  justice  may 
be  meted  out  to  all.  In  such  cases  the  parties  may  be  as 
numerous  as  the  interests  involved,  and  each  may  participate 
in  the  pleadings,  trial,  and  judgment  according  to  the  nature  of 
his  claim,  (a) 

Read  (a)  81  D.  626. 


§  316.   Of  the  Various  Systems  of  Courts. 

Were  States  created  with  deliberate  forethought  by  a  people 
gifted  with  sufficient  political  wisdom  and  experience,  it  might 
be  expected  that  their  judicial  as  well  as  their  legislative  and 
executive  systems  would  be  unitary  and  homogeneous.  But 
States  formed  like  our  own,  by  gradual  and  almost  impercep- 
tible development  from  antecedent  political  societies,  naturally 
accumulate  concurrent  and  sometimes  conflicting  institutions 
through  their  efforts  to  meet  new  conditions  by  adding  new 
governmental  agencies  without  abolishing  the  old.  Concur- 
rent and  conflicting  legislative  and  executive  bodies,  operating 
as  they  do  directly  to  the  public  detriment,  cannot  be  toler- 
ated, and  their  reconciliation  and  co-ordination  is  necessarily 
and  speedily  effected.  But  difficulties  of  this  character  in  the 
judicial  system,  being  prejudicial  mainly  to  private  individuals 
and  obscurely  understood  and  often  believed  to"  be  inevitable 
by  the  public  at  large,  may  continue  indefinitely.  And  thus 
it  happens  that  our  own  judicial  system,  inherited  from  Eng- 
land where  before  the   Revolution  it  had  already  become  an 


296  AMERICAN   JURISPRUDENCE.  §  317 

aggregation  of  heterogeneous  and  sometimes  conflicting  mem- 
bers, is  composed  of  various  species  of  courts,  differing  from 
one  another  not  merely  in  jurisdiction  but  in  their  methods  of 
procedure  and  in  the  nature  of  the  protection  or  redress 
which  they  afford.  Eventually  this  multiplicity  and  diversity 
of  tribunals  must  undoubtedly  disappear,  but  it  is  still  neces- 
sary to  consider  them  as  subordinate  systems,  a  knowledge  of 
whose  peculiar  rules  and  practices  is  essential  to  the  student. 
These  subordinate  systems  are :  (1)  The  Courts  of  Common 
Law;  (2)  The  Courts  of  Equity;  (3)  The  Courts  of  Probate; 
(4)  The  Courts  of  Admiralty ;  and  (5)  The  Extraordinary 
Courts.  A  glance  at  the  historical  origin  and  present  condi- 
tion of  each  of  these  will  not  only  account  for  their  exist- 
ence, but  also  manifest  their  relations  toward  one  another. 


SECTION   II. 

OF   THE   COURTS    OF   COMMON   LAW. 

§  317.    Of  the  Origin  of  the  Courts  of  Common  Law. 

During  the  Saxon  period  of  English  history  the  kingdom 
became  politically  subdivided  into  counties,  hundreds,  and 
tithings;  the  tithing  consisting  of  ten  families,  the  hundred 
of  ten  tithings,  and  the  county  of  an  indefinite  number  of 
hundreds.  In  each  of  these  subdivisions  courts  were  estab- 
lished having  jurisdiction  over  local  controversies,  with  a 
right  of  appeal  from  the  lower  tribunals  to  the  higher,  and 
from  the  highest  to  the  witenagemote  or  general  assembly 
of  the  chief  men  of  the  kingdom,  over  which  the  sovereign, 
either  personally  or  by  a  delegate,  presided.  After  the  Con- 
quest the  supreme  judicial  power  resided  in  the  Norman 
monarch  and  his  assembly  of  councillors,  called  the  aula 
regis,  to  which  appeals  from  other  courts  became  so  numer- 
ous as  practically  to  divest  them  of  all  authority  and  make 
the  aula  regis  the  resort  of  all  suitors.  In  this  court  the 
king  was  the  legal  fount  of  justice,  though  represented  by  a 
chief  justiciar,  —  a  magistrate  learned  in  the  law  and  one  of 
the  principal  dignitaries  of   the  kingdom.     Prior  to  Magna 


§  318  COURTS   OF   COMMON   LAW.  297 

Carta,  a.  d.  1215,  the  aula  regis  followed  the  person  of  the 
king  in  his  migrations  through  the  kingdom,  but  by  that 
royal  concession  one  branch  of  it,  the  Court  of  Common 
Pleas,  having  jurisdiction  over  all  controversies  concerning 
land  and  all  private  injuries  between  subject  and  subject,  was 
permanently  established  at  Westminster.  Another  branch  of 
the  aula  regis,  the  Court  of  Exchequer,  before  which  contro- 
versies concerning  the  royal  revenue  and  incidentally  con- 
cerning private  injuries  by  which  the  king's  debtors  were 
incapacitated  to  fulfil  their  obligations  to  the  crown  were 
brought,  also  became  separated  from  the  rest;  while  the 
remaining  branch,  known  as  the  Court  of  King's  Bench, 
retained  its  jurisdiction  over  public  wrongs  and  ultimately 
acquired  civil  jurisdiction  over  many  cases  involving  merely 
private  injuries.  These,  with  various  subordinate  courts, 
relics  or  reproductions  of  the  minor  Saxon  tribunals,  consti- 
tuted at  the  date  of  the  American  Revolution  the  system  of 
courts  called  the  Courts  of  Common  Law,  to  distinguish  them 
from  courts  of  equity  and  admiralty,  and  have  continued 
under  different  names  and  powers  to  exercise  judicial  func- 
tions over  criminal  and  civil  cases,  both  in  England  and  this 
country,  to  the  present  day. 

Read  3  Bl.  Com.,  pp.  30-46,  55-60;  Reeve,  Ch.  i,  pp.  175-180, 
Ch.  ii,  pp.  259-278;  Maine,  Early  Law  and  Custom, 
pp.  167-189. 


§  318.    Of  the  Topical    Jurisdiction  of  the  Courts    of  Common 
Law. 

According  to  the  methods  of  procedure  early  adopted  in 
these  courts  a  civil  action  must  be  commenced  by  the  service 
of  a  writ  upon  the  defendant,  commanding  him  to  appear  in 
court  at  a  day  named  and  answer  to  the  claim  of  the  plain- 
tiff. This  writ  was  prepared  in  the  office  of  the  secretary 
or  chancellor  of  the  sovereign  and  was  issued  under  royal 
authority.  Its  statement  of  the  claim  of  the  plaintiff  was 
intended  not  merely  to  give  notice  of  its  character  to  the 
defendant,  but  to  manifest  to  the  court  to  which  the  writ  was 


298  AMERICAN   JURISPRUDENCE.  §  319 

made  returnable  that  the  controversy  was  within  its  jurisdic- 
tion, and  for  this  purpose  was  made  technically  exact  and 
perfect  to  the  highest  degree.  The  private  wrongs  of  which 
the  law  took  cognizance  at  this  period  were  the  exclusion 
from  land  of  its  true  owner,  the  failure  to  pay  a  definitely 
ascertainable  debt,  the  breach  of  a  contract  under  seal,  and 
the  forcible  injury  of  persons  and  property.  Writs  suited  to 
all  species  of  these  wrongs  were  gradually  devised  by  the 
clerks  in  chancery  as  occasion  for  them  arose,  and  were 
elaborated  with  great  care  and  skill,  and  when  perfected 
their  forms  and  contents  were  adhered  to  with  extreme 
rigidity.  When  an  injured  party  applied  for  a  writ,  if  the 
facts  in  his  case  corresponded  with  the  statement  of  facts  in 
any  known  writ,  that  writ  was  issued  in  his  favor;  if  not, 
no  writ  could  issue  and  redress  was  consequently  denied  him. 
The  effect  of  this  rigid  practice  was  to  confine  within  narrow 
limits  the  topical  jurisdiction  of  the  common  law  courts  and 
to  leave  many  meritorious  suitors  without  legal  relief.  There- 
fore in  a.  d.  12S5  a  statute  was  enacted  which  provided  that 
when  a  case  was  presented  to  the  clerks  in  chancery  for 
which  no  form  of  writ  could  be  found,  but  which  was  an 
invasion  of  a  right  already  recognized  by  the  courts  and  re- 
quired a  remedy  similar  to  those  customarily  applied,  the 
clerks  should  devise  a  new  writ  to  meet  it,  and  if  they  were 
unable  to  do  this,  the  matter  should  be  laid  before  the  next  Par- 
liament, by  which  a  suitable  writ  should  be  prepared.  This 
statute  was  carried  into  effect  in  such  a  manner  as  to  intro- 
duce actions  for  breaches  of  contract  not  under  seal  and  for 
certain  injuries  without  force  to  persons  and  property,  but 
left  many  wrongs  equally  grievous  to  the  sufferer  unre- 
dressed, and  to  this  day  unredressable  in  the  courts  of  com- 
mon law. 


§  319.    Of  the  Number  of  the    Parties   Litigant  in   the    Courts 
of  Common  Law. 
The  trial  of  a  civil  case  in  the  courts  of  common  law  ordi- 
narily takes  place  before  a  jury  of  the  common  people,  not 


■20,  321  COURTS    OF    COMMON    LAW.  2 

learned  in  the  law  nor  highly  skilled  in  the  investigation  of 
intricate  questions  of  fact.  To  bring  the  ease  within  their 
comprehension  the  pleadings  were  so  framed  as  to  result  in  a 
single  affirmation  and  denial,  enabling  the  jury  to  decide  the 
controversy  by  simply  finding  the  issue  for  one  party  or  the 
other.  Under  this  system  the  court  could  take  no  cogni- 
zance of  controversies  involving  more  than  two  parties;  cases 
in  which  three  or  more  conflicting  interests  must  be  adjusted 
remaining,  so  far  as  these  courts  were  concerned,  without 
redress. 

Read  Walker,  Lect.  xxxvii,  pp.  587-075. 


§  320.  Of  the  Redress  Obtainable  in  Courts  of  Common  Law. 
The  redress  afforded  by  the  courts  of  common  law  rested 
entirely  upon  the  theory  of  compensation  for  a  completed 
wrong.  No  suit  could  be  brought  until  an  injury  had  been 
committed,  and  if  the  plaintiff  obtained  a  judgment  the  court 
could  award  him  only  the  restoration  of  the  property  of 
which  he  had  been  deprived,  or  money-  damages  collectable 
out  of  the  property  of  the  defendant  or  enforceable  against 
his  person  by  his  imprisonment  until  the  amount  was  paid. 
Against  threatened  injuries  these  courts  furnished  no  protec- 
tion; for  injuries  which  could  not  be  compensated  by  the 
restitution  of  property  or  the  payment  of  damages  they 
offered  no  redress. 


§  321.  Of  the  Limitations  upon  the  Jurisdiction  of  the  Courts 
of  Common  Law. 
The  ordinary  jurisdiction  of  the  courts  of  common  law  over 
civil  cases  is  thus  confined  within  the  comparatively  limited 
area  of  controversies  between  two  parties,  which  arise  out  of 
completed  wrongs  consisting  in  a  breach  of  contract  or  the 
dispossession  of  lands  or  goods  or  the  forcible  or  consequen- 
tial injury  of  persons  or  property,  and  which  can  be  ade- 
quately remedied  by  the  restoration  of  the  property  or  the 
payment   of   money.      Extraordinary  jurisdiction   they    may 


300  AMERICAN    JURISPRUDENCE.         §§  322,  323 

exercise  over  special  cases  by  virtue  of  a  statute,  but  the 
instances  of  this  have  hitherto  been  few  and  the  judicial 
authority  of  these  courts  remains  substantially  as  it  was 
established  under  the  Act  of  Parliament  of  a.  d.  1285,  leav- 
ing to  other  courts  hereafter  described  the  application  of 
remedies  to  those  injuries  to  which  these  methods  of  redress 
do  not  extend. 


SECTION   III. 

OF    THE    COURTS    OF    EQUITY. 

§  322.    Of  the  Origin  of  the  Courts  of  Equity. 

The  Courts  of  Equity  are  a  natural  outgrowth  of  social  con- 
ditions, coupled  with  the  limited  jurisdiction  and  the  methods 
of  procedure  in  the  courts  of  common  law.  Injuries  demand- 
ing redress  beyond  the  power  of  the  common  law  courts  to 
furnish  always  have  occurred  ;  and  relief  for  these  was  neces- 
sarily sought  directly  from  the  sovereign  by  petition,  upon 
which  he  or  his  delegate  awarded  such  compensation  or  pro- 
tection as  his  sense  of  justice  prescribed.  The  delegate  to 
whom  such  petitions  were  ordinarily  referred  was  his  chan- 
cellor, who  was  not  only  his  secretary,  issuing  his  writs  to  the 
courts  of  common  law,  but  also  his  chaplain,  the  keeper  of  his 
conscience  and  the  administrator  of  justice  in  his  name.  Thus 
upon  the  denial  of  a  common  law  writ  on  the  ground  that  no 
precedent  existed  for  it,  or  the  failure  of  the  courts  of  com- 
mon law  to  fully  meet  the  exigencies  of  the  controversy,  an 
immediate  resort  to  the  chancellor  was  available,  by  whom 
the  rights  of  the  contending  parties  could  be  ascertained  and 
declared. 

Read  3  Bl.  Com.,  pp.  46-55.  429-443;  Reeve,  Ch.  ii,  pp.  279- 
281 ;  Walker,  Lect.  iv,  pp.  55-57. 


§  323.    Of  the  Development  of  Courts  of  Equity. 

For  a  long  period  the  power  of  the  chancellor  over  these 
cases  was  advisory  rather  than  judicial,  and  extended  at  the 


§  324  COURTS   OF   EQUITY.  301 

farthest    to    the    infliction   of   ecclesiastical   censures   which 
the  parties  might,  if  they  chose  to  do  so,  disregard.     But  in 
the  reign  of  Richard  II.  (a.  d.  1377-99)  Chancellor  Waltham, 
in  the  endeavor  to  oblige  a  trustee  to  discharge  his  duties  to 
his  cestui  que  trust,  invented  a  writ  of  subpoena  by  which  the 
parties  could  be  brought  before  his  tribunal  and  compelled  to 
remain  in  attendance  upon  it  until  his  orders   were  obeyed. 
The  assertion  of  this  authority,  which  was  finally  recognized 
by  the  sovereign  and  the  people,  gave  to  the  chancellor  direct 
jurisdiction  over  the  persons  of  all  the  parties  to  the  contro- 
versy, and  enabled  him  to  enforce  his  decrees,  if  necessary,  by 
their  perpetual  detention  in  the  custody  of  the  court.     In  this 
manner  relief  for  any  kind  of  legal  wrong  became  practically 
attainable.     Threatened  injuries  could  be  prevented  as  well 
as  completed  injuries  could  be  redressed  by  the  mandate  of, 
the  court.     Controversies   in   which    numerous    parties    were  j 
involved  could  be  as  readily  adjusted  as  if  two  alone  were 
concerned.     Instead  of  an  inadequate  compensation  in  money 
for  a  breach  of  duty,  the  performance  of  the  duty  itself  could 
be  secured.     Even  the  judgment  of  a  court  of  common  law,  if 
inequitable  between  the  parties,  could  be  rendered  nugatory 
by   prohibiting   the   victorious    party    from   carrying  it   into 
effect.     And  if  no  court  but  this  of  the  chancellor  had  then 
existed  it  would  seem  as  if  this  alone,  from  the  scope  of  its 
jurisdiction,  the  flexibility  of    its  proceedings,  and   the   effi- 
ciency of  its  remedies,  would  have   been  sufficient  for  all  the 
purposes  of  remedial  justice  in  any  political  or  social  condition 
to  which  the  people  of  England  might  have  attained. 

§  324.    Of  the  Conflict  between  the  Courts  of  Equity  and  the 
Courts  of  Common  Law. 

This  growth  of  equity  jurisdiction  was  not,  however,  without 
strenuous  opposition  on  the  part  of  the  common  law  courts, 
their  attorneys  and  other  officers,  and  many  adherents  of  the 
ancient  customs  of  the  realm.  In  a.  d.  1616  the  contest  cul- 
minated in  a  question  of  the  gravest  character,  m  which  the 
authority  of  the  chancellor  to  grant  relief  against  a  judgment 


302  AMERICAN    JURISPRUDENCE.  §  325 

of  the  courts  of  common  law  was  fully  established  by  a  decision 
of  the  crown.  From  this  time  forward  the  line  of  demarcation 
between  the  two  systems  of  courts  became  more  and  more  clearly 
defined,  the  modes  of  proceeding  in  courts  of  equity  were  coor- 
dinated and  improved,  and  their  judicial  business  and  juridical 
influence  constantly  increased.  For  the  past  century,  at  least, 
both  in  England  and  America  they  have  overshadowed,  and 
in  some  of  our  States  have  almost  superseded,  the  courts  of 
common  law,  partly  through  statutory  reforms  in  pleadings 
and  procedure  and  partly  through  their  gradual  assumption 
of  control  over  controversies  which  once  were  unhesitatingly 
referred  to  the  courts  of  common  law. 


§  325.  Of  the  Line  of  Demarcation  between  the  Jurisdictions 
of  Courts  of  Equity  and  Courts  of  Common  Law. 
Where  the  original  normal  distinction  between  courts  of 
equity  and  courts  of  common  law  is  still  preserved,  the  test  of 
equity  jurisdiction  is  the  existence  of  an  adequate  remedy  at 
law.  If  the  courts  of  common  law  can  under  their  methods 
of  procedure  take  as  complete  a  cognizance  of  the  controversy 
and  its  parties  as  a  court  of  equity  could  do,  and  can  afford  a 
remedy  as  sufficient  and  as  practically  adapted  to  the  ends  of 
justice  as  a  court  of  equity  could  give,  the  jurisdiction  of  the 
case  is  in  the  courts  of  common  law,  and  equity  tribunals  can- 
not interfere,  (a)  But  where  these  conditions  cannot  be  ful- 
filled the  courts  of  equity  are  open  to  the  parties  seeking  for 
relief.  The  application  of  this  test  brings  within  their  juris- 
diction the  following  classes  of  cases:  (1)  Cases  requiring  ai( 
preventive  remedy  on  account  of  the  irreparable  nature  off 
the  threatened  injury  or  the  multiplicity  of  suits  to  which  its 
probable  repetition  would  lead  ;  (2)  Cases  requiring  a  dis- 
closure by  the  adverse  party  of  matters  known  only  to  him- 
self or  unprovable  by  witnesses,  and  whose  presentation  to  the 
court  is  necessary  to  a  correct  decision  of  the  controversy ;! 
(3)  Cases  involving  the  interests  of  more  than  two  distinct 
parties  to  such  an  extent  or  in  such  a  manner  that  the  contro-l 
versy  cannot  be  finally  adjusted  as  to  any  two  of  them  without  \ 


§  326  COURTS   OF   EQUITY.  303 

an  adjudication  as  to  others  ;  (4)  Cases  where  complete  relief 
can  be  obtained  only  by  the  performance  by  one  or  more  of 
the  parties  of  some  act  other  than  the  restoration  of  dis- 
possessed property  or  the  payment  of  money;  (5)  Cases  in- 
volving rights  of:  property  which  were  unknown  to  the  law 
when  the  remedies  provided  by  the  common  law  courts  were 
devised,  and  for  whose  protection  and  enforcement  those  rem- 
edies are  not  available  ;  (6)  Cases  where  parties  are  absolved 
from  duties  ordinarily  enforceable  at  law  by  conduct  of  the 
other  parties  which  is  not  available  as  a  defence  at  law,  but 
which  renders  it  inequitable  that  in  this  particular  case  the 
performance  of  the  duty  or  compensation  for  its  non-perform- 
ance should  be  decreed. 

Read  (a)  16  D.  606;  43  D.  53;  24  St.  678;  19  How.  271;  119 
U.  S.  347. 


§  326.    Of  the  Topical  Jurisdiction  of  the  Courts  of  Equity. 

The  principal  instances  of  the  application  of  the  powers  of 
courts  of  equity  in  the  foregoing  classes  of  cases  are  these  : 
(1)  The  prevention  by  an  injunction,  or  judicial  prohibition 
under  threatened  penalties,  of  fraudulent  practices,  of  actions 
or  omissions  likely  to  result  in  injuries  for  which  no  money 
damages  will  compensate,  of  wrongs  against  physical  health 
and  comfort,  or  of  the  invasion  of  family  rights  (a)  ;  (2)  The 
enforcement  of  the  specific  performance  of  contracts  whose 
breach  would  work  irreparable  injury  (6) ;  (3)  The  correction 
of  the  language  of  written  contracts  and  conveyances  in  cases 
of  verbal  error  through  accident  or  mutual  mistake,  in  order 
that  their  contents  may  conform  to  the  actual  intentions  of 
the  parties  (c) ;  (4)  The  abrogation  of  agreements  obtained  by 
fraud  (d) ;  (5)  The  settlement  of  accounts  between  three  or 
more  partners  or  between  two  or  more  claimants  of  a  debt  due 
from  a  third  party  (e)  ;  (6)  The  foreclosure  and  redemption  of 
mortgages  ;   (7)  The  partition  of  property  between  co-tenants ; 

(8)  The  protection  of  the  separate  property  of  married  women; 

(9)  The  appointment  and  supervision  of  receivers;  (10)  The 
regulation  of  trusts  and  trustees  (/) ;  (11)  The  perpetuation 


304  AMERICAN   JURISPRUDENCE.  §  327 

of  evidence ;  (12)  The  enforcement  of  a  discovery  or  disclosure 
of  facts  or  writings  by  the  parties  (g) ;  (13)  The  setting  aside 
or  carrying  into  effect  of  awards  of  arbitrators  ;  (14)  Reliev- 
ing against  inequitable  though  legal  forfeitures  and  pen- 
alties^); (15)  Aiding  a  court  of  common  law  to  execute  its 
judgments  by  compelling  the  defeated  parties  to  submit  their 
property  to  its  process  (i)  ;  (16)  Preventing  the  victorious  party 
in  a  suit  at  law  from  enforcing  his  judgment  when  it  would  be 
contrary  to  justice  and  conscience  so  to  do(j);  (17)  Granting 
a  new  trial  to  the  defeated  party  where  it  is  apparent  that  on 
the  former  trial  he  was  prevented  from  obtaining  the  hearing 
to  which  he  was  entitled  (k) ;  (18)  Removing  a  cloud  from  a 
title  to  land  (I) ;  (19)  Preventing  a  multiplicity  of  possible 
suits  by  finally  determining  the  state  of  facts  out  of  which 
the  controversies  might  arise,  (m)  These  instances  indicate  the 
vast  range  of  the  judicial  power  of  courts  of  equity,  and  the 
facility  with  which  their  methods  of  relief  can  be  adapted  to 
every  kind  of  legal  wrong. 

Read  Walker,  Lect.  xxxviii,  pp.  700-720. 

(a)  69  D.  728 ;  53  R.  342,  note. 

(b)  23  D.  417,  note. 

(c)  55  D.  137,  note  ;  65  St.  475,  note. 
((/)  45  D.  621,  note. 

(e)   35  D.  690,  note. 

(/)  95  D.  572,  note ;  63  St.  211,  uote;  64  St.  745,  note 

(g)  22  D.  279,  note. 

(/;)  50  D.  593,  note;  68  D.  73,  note. 

(1)   90  D.  287,  note ;  66  St.  267,  note. 

O)  19  D.  595,  note ;  53  St.  437,  note;  54  St.  216,  note- 

(£)  20  D.  158,  note. 

(0   67  D.  106,  note. 

(in)  32  D.  689,  note ;  50  D.  445,  note. 


§  327.    Of  the  Indirect  Jurisdiction  of  Courts  of  Equity. 

The  topical  jurisdiction  of  the  courts  of  equity  receives  an 
indirect  but  wide  extension  from  the  doctrine  that  where  a 
court  of  equity  once  acquires  jurisdiction  of  a  case  for  any 
purpose  it  may  retain  jurisdiction  of  the  case  for  all  purposes, 


§  328  COURTS   OF   EQUITY.  305 

and  therefore  has  authority  to  decide  all  its  issues  whether, 
standing  alone,  they  would  or  would  not  be  within  its  topical 
jurisdiction.  Thus  if  a  controversy  has  a  single  aspect  on 
account  of  which  either  of  its  parties  may  and  does  invoke 
the  interference  of  a  court  of  equity,  although  in  every  other 
aspect  it  would  be  cognizable  by  a  court  of  common  law,  the 
court  of  equity  to  which  it  is  presented  is  not  confined  in  its 
adjudication  to  the  single  aspect  ou  which  its  direct  jurisdic- 
tion rests,  but  may  consider  and  determine  all  its  aspects,  and 
exercise  with  reference  to  them  the  same  judicial  functions  as 
a  court  of  common  law.  (a)  This  doctrine  leaves  within  the 
exclusive  cognizance  of  the  common  law  courts  only  such  of 
those  cases  which  were  within  their  original  jurisdiction  as 
may  happen  to  be  free  from  any  incidental  features  on  which  a 
claim  for  equitable  interference  might  be  based,  and  enables 
suitors  to  invoke  the  aid  of  courts  of  equity  in  controversies 
which  substantially  belong  within  the  jurisdiction  of  the  courts 
of  law. 

Read  (a)  51  D.  584 ;  2G  St.  523. 


§  328.  Of  the  Limitations  of  the  Jurisdiction  of  the  Courts  of 
Equity. 
Wide,  however,  as  equity  jurisdiction  is,  it  nevertheless  has 
its  limitations.  It  can  take  cognizance  only  of  private  civil 
rights,  and  of  these  only  as  they  have  been  already  denned 
and  settled  by  the  law.  It  accepts  the  same  classifications 
and  distinctions  of  persons  and  property,  actions  and  for- 
bearances, duties  and  injuries,  which  are  recognized  by  the 
courts  of  common  law.  (a)  It  cannot  create  new  rights,  nor 
declare  future  rights  otherwise  than  by  construing  contracts 
and  conveyances,  nor  entertain  a  question  concerning  abstract 
rights  where  no  controversy  concerning  actual  legal  rights 
exists,  (b)  It  cannot  introduce  new  remedies  in  violation  or 
without  the  authority  of  law.  It  has  no  jurisdiction  over 
public  rights  or  crimes,  nor  can  it  interfere  in  private  contests 
simply  because  a  party  has  been  defeated  in  his  effort  to  obtain 
redress   at  law.  (<•)     In  adjudicating  upon  controversies  it  is 

20 


306  AMERICAN    JURISPRUDENCE.  §  329 

obliged  to  follow  the  fundamental  maxims  in  which  the  prin- 
ciples of  equity  have  been  authoritatively  expressed  by  former 
chancellors,  and  at  the  same  time  to  administer  the  remedies 
at  its  command  in  accordance  with  the  principles  and  precepts 
of  the  law.  (d) 

Read  (</)   15  How.  281. 

(b)  1  Wall.  1. 

(c)  5  St.  494 ;  124  U.  S.  200 ;  19  R.  310. 

(d)  31  D.  238  (241,  242);  19  Wall.  107  (121,  122). 

§  329.    Of  the  Proceedings  in  Courts  of  Equity. 

The  proceedings  in  a  court  of  equity  are  simplicity  itself  as 
compared  with  those  in  courts  of  common  law.  They  are 
commenced  by  a  petition  in  which  the  claimant  states  in  or- 
dinary language  the  facts  on  which  his  claim  is  based,  and 
prays  for  the  relief  to  which  he  deems  himself  entitled,  (a) 
Upon  the  presentation  of  this  petition  to  the  court  notice  is 
given  to  all  other  parties  in  interest  to  appear  and  show  cause, 
if  they  can,  why  the  prayer  of  the  petition  should  not  be 
granted,  (b)  On  their  appearance  they  make  such  objections, 
or  denials  or  new  affirmations  as  their  claims  require,  (c) 
The  questions  of  law  and  fact  arising  upon  these  assertions 
and  denials  are  investigated  by  the  chancellor  through  the 
oral  or  written  testimony  of  witnesses  and  the  arguments  of 
counsel,  or,  if  he  deems  it  necessary,  with  the  assistance  of  a 
jury,  and  the  various  parties  are  ordered  to  do  or  to  forbear 
whatever  in  his  judgment  the  equity  and  justice  of  the  case 
requires. (d)  Compliance  with  these  orders  adjusts  the  con- 
troversy and  the  case  is  at  an  end.  Refusal  to  obey  them  is 
followed  by  the  attachment  of  the  disobedient  party  for  con- 
tempt of  court,  and  the  imposition  of  such  penalties  of  fine 
and  imprisonment  as  are  calculated  to  induce  him  to  submit. 

Read  3  Bl.  Com.  pp.  442-455 ;  Walker,  Lect.  xxxviii,  pp.  675- 
700. 

(a)  14  Pet.  156  (164) ;  104  U.  S.  65S ;  113  U.  S.  756. 

(b)  17  How.  130  (139,  140). 

(c)  17  How.  91 ;  83  D.  249,  note. 
id)  1  D.  121 ;  97  D.  51. 


§§  330, 331  courts  of  equity.  307 

§  330.  Of  the  Special  Jurisdiction  of  Courts  of  Equity  over 
Infants,  Insane  Persons,  and  Incapables. 
In  addition  to  the  controversies  between  adverse  parties 
which  in  the  manner  just  described  fall  within  the  jurisdiction 
of  the  courts  of  equity,  they  are  charged  with  many  other 
judicial  and  administrative  duties  which  also  grow  out  of  the 
ancient  relations  between  the  chancellor  and  the  king.  The 
king,  according  to  the  doctrine  of  the  common  law,  is  j""'1"* 
patrice,  the  father  of  his  country,  the  guardian  of  all  persons 
who  are  incapable  of  caring  for  themselves,  the  custodian  of 
all  property  which  has  no  other  owner  able  to  manage  and 
protect  it.  The  numerous  and  important  functions  attached 
to  this  high  office  the^inonarch  found  it  also  convenient  to 
transfer  to  his  chancellor,  and  thus  vest  in  chancery,  and  finally 
in  the  courts  of  equity,  jurisdiction  over  orphaned  infants  and 
insane  persons,  over  property  appropriated  to  charitable  uses, 
and  over  other  interests  of  a  similar  character  which  might 
properly  be  regarded  as  a  royal  charge.  More  or  less  of  these 
duties  have,  as  time  went  on,  been  distributed  to  special  courts, 
particularly  in  this  country  ;  but  equity  still  exercises  over 
them  a  supervisory  or  appellate  jurisdiction,  and  furnishes 
the  principles  and  methods  upon  which  they  are  everywhere 
administered,  (a) 

Read  (a)  18  D.  681,  note. 


§  331.  Of  the  Merger  of  the  Courts  of  Equity  and  the  Courts 
of  Common  Law. 
In  their  origin  and  for  many  generations  the  tfburts  of  com- 
mon law  and  courts  of  equity  were  entirely  distinct  tribunals 
as  to  the  persons  of  their  judges  and  other  officers,  as  well  as 
in  their  jurisdiction  and  methods  of  procedure  and  relief. 
But  during  the  past  century  an  increasing  tendency  to  the 
consolidation  of  these  tribunals  has  manifested  itself,  and  in 
many  of  our  American  States  both  common  law  and  equitv 
jurisdiction  are  exercised  by  the  same  courts,  some  preserving 
the  distinction  between  forms  of  procedure  as  well  as  between 
modes  of   relief,  while  others,  though  retaining    the   diverse 


308  AMERICAN    JURISPRUDENCE.  §  332 

methods  of  relief  appropriate  to  different  states  of  fact,  have 
assimilated  their  entire  procedure  to  that  which  always  has 
prevailed  in  courts  of  equity.  By  many  of  our  modern  jurists 
a  complete  fusion  of  the  two  systems  is  regarded  as  not  only 
practicable,  but  desirable  and  probable ;  but  the  Supreme 
Court  of  the  United  States  has  held  that  in  the  Federal 
Courts,  although  the  persons  constituting  the  tribunal  may  be 
the  same,  yet  the  distinctions  between  common  law  and  equity 
jurisdiction,  as  to  the  facts  on  which  they  are  based  and  the 
nature  of  the  remedies  they  can  apply,  are  under  the  Federal 
Constitution  permanent  and  ineradicable.  The  Judicature 
Acts  of  Parliament  in  a.  d.  1873  exhibit  the  same  tendency  as 
operating  upon  the  judicial  systems  of  Great  Britain,  not, 
however,  as  yet  to  the  union  of  the  tribunals  by  which  law 
and  equity  powers  are  exercised. 


SECTION   IV. 

OF    THE   COURTS    OF    PROBATE. 

§  332.    Of  the  Nature  and  Origin  of  Probate  Jurisdiction. 

The  principal  purpose  for  which  courts  of  probate  are 
established  is  the  settlement  of  the  estates  of  deceased  per- 
sons. Every  species  of  property  which  can  survive  the  death 
of  its  owner  must  necessarily  vest  in  new  owners,  and  these 
new  owners  must  be  designated  either  by  the  act  of  the 
former  owner  or  by  the  operation  of  law.  The  act  by  which 
an  owner  of  property  designates  the  persons  who  are  to 
become  its  owners  after  his  death  is  the  making  and  execu- 
tion of  a  will  or  testament,  and  the  legal  right  to  make  a  will 
having  this  effect  has  been  recognized  by  most  civilized 
States  in  all  ages  of  the  world.  To  ascertain  whether  or 
not  a  valid  will  has  been  made,  and  if  so  to  superintend  the 
carrying  out  of  its  provisions,  and  if  not  to  dispose  of  and 
distribute  the  property  of  the  deceased  according  to  law,  is 
the  proper  function  of  a  court,  since  it  involves  the  duty  of 
interpreting  and  applying  law,  of  adjudicating  upon  conflict- 


§  383  COURTS  OF  PROBATE.  309 

ing  claims,  and  of  enforcing  the  fulfilment  of  judicial  decrees. 
In  the  Saxon  period  this  function  was  discharged  by  the 
county  courts  in  which  the  bishop  of  the  diocese  and  the 
chief  secular  magistrate  of  the  county  sat  together  as  judges. 
With  the  separation  of  ecclesiastical  and  civil  tribunals 
which  took  place  under  the  early  Norman  kings  jurisdiction 
over  these  probate  matters  was  lodged  in  the  ecclesiastical 
courts,  partly  because  their  methods  of  procedure  were  better 
suited  to  such  cases  than  those  of  the  common  law  courts, 
and  partly  because  the  ordinary,  or  bishop  of  the  diocese, 
was  entitled  under  the  law  to  all  the  personal  property  of 
which  its  deceased  owner  might  have  made  disposition  by 
his  will  and  failed  to  do  so.  Later  the  duty  of  paying  the 
debts  of  the  deceased  out  of  this  property  was  imposed  upon 
the  ordinary,  and  later  still  the  duty  of  appointing  the  next 
of  kin  to  the  deceased  as  an  administrator  to  collect  the 
assets,  ascertain  and  pay  the  debts,  and  distribute  the  re- 
mainder to  the  persons  legally  entitled  to  receive  it,  was 
prescribed.  This  jurisdiction  continued  in  the  ecclesiastical 
courts  in  England  until  a.  d.  1857,  when  a  new  secular  court 
of  probate  was  created  by  statute  before  which  all  such  mat- 
ters must  be  brought. 

Read  3  Bl.  Com.,  pp.  61-67,  95-08;  Reeve,  Ch.  ii,  pp.  283-288. 
312-314;  Markby,  §§  803-820. 


§  333.    Of  the  Courts  of  Probate  in  the  United  States. 

In  this  country  ecclesiastical  courts  having  authority  in 
civil  matters-  have  always  been  unknown,  and  as  the  same 
affairs  required  the  same  judicial  supervision  here  as  in  Eng- 
land, it  became  necessary  to  provide  by  direct  legislation 
such  tribunals  and  to  clothe  them  with  the  proper  jurisdic- 
tion. This  was  accomplished  in  some  States  by  conferring 
probate  powers  upon  existing  common  law  or  equity  courts, 
in  otliers  by  creating  new  courts  of  limited  and  special  juris- 
diction to  which  the  control  of  these  and  kindred  matters  was 
confided.  Such  courts  are  variously  called  "  probate  courts," 
"surrogates'  courts,"  "orphans'  courts."  or  some  equivalent 


310  AMERICAN   JURISPRUDENCE.         §§  334,  335 

name  indicating  the  character  of  the  duties  they  are  commis- 
sioned to  discharge.  The  scope  of  the  probate  powers  lodged 
in  these  courts  is  measured  by  the  constitutional  or  statu- 
tory provisions  in  which  they  originate,  and  they  have  no 
authority  except  what  has  thus  been  expressly  or  impliedly 
bestowed.  («) 

Read  (a)  33  D.  227 ;  58  D.  488,  note ;  90  D.  122,  note. 


§  334.    Of  the  Ordinary  and  Special  Jurisdiction  of  the  Courts 
of  Probate. 

The  territorial  area  over  which  the  jurisdiction  of  these 
courts  extends  is  generally  small.  The  nature  of  their  trans- 
actions is  such  that  every  citizen  sooner  or  later  becomes 
pecuniarily  interested  in  them,  and  they  are  consequently 
brought  within  the  reach  of  all  by  multiplying  their  number 
and  giving  to  each  one  of  them  a  narrow  field  of  operation. 
A  probate  district,  as  this  area  is  called,  is  frequently  a 
single  township,  at  most  perhaps  a  county.  The  methods  of 
procedure  in  these  courts  is  simple,  following  very  nearly 
those  in  use  in  courts  of  equity,  and  are  as  expeditious  and 
inexpensive  as  the  proper  conduct  of  their  business  will  per- 
mit. Moreover,  in  addition  to  their  probate  powers  they 
often  have  control  of  lunatics  and  infants  and  their  guar- 
dians, of  trust  estates,  estates  in  bankruptcy,  and  other  mat- 
ters formerly  included  in  the  administrative  jurisdiction  of 
the  courts  of  equity,  and  which  in  modern  conditions  of 
society  require  the  speedy,  economical,  and  convenient  settle- 
ment which  the  probate  courts  are  able  to  afford. 


§  335.  Of  the  Primary  and  Ancillary  Jurisdiction  of  the  Courts 
of  Probate. 
In  probate  matters  the  primary  jurisdiction  of  a  probate 
court  is  confined  to  the  estates  of  such  deceased  persons  as  at 
the  time  of  their  death  had  their  domicile  within  its  territo- 
rial jurisdiction.  A  secondary  or  ancillary  jurisdiction  they 
may  exercise  over  property  situated  within  their  territorial 


§  336  COURTS    OF    PROBATE.  311 

jurisdiction  but  belonging  to  the  estates  of  deceased  persons 
who  were  domiciled  in  other  States  and  whose  estates  are 
being  settled  in  the  probate  court  of  their  domicile.  This 
ancillary  jurisdiction  is  always  in  aid  of  and  subordinate  to 
the  primary  jurisdiction  of  the  court  of  domicile,  and  in  the 
absence  of  such  primary  jurisdiction  the  acts  of  the  ancillary 
court  will  be  invalid.  The  principal  duties  of  the  ancillary 
court  are  to  ascertain  the  authority  of  the  foreign  executor  or 
administrator  to  receive  the  property  and  to  superintend  its 
collection  and  delivery  to  him.  A  probate  court  may  have 
the  same  ancillary  jurisdiction  in  reference  to  extra-territorial 
guardians  and  trustees,  (a) 

Read  Story,  Conf.  L.  §§  503-529. 
(a)  35  D.  472,  note. 


§  336.    Of  the  Jurisdiction  of  the  Courts  of  Probate  over  Tes- 
tate Estates. 

In  the  exercise  of  their  primary  probate  jurisdiction  these 
courts  are  concerned  chiefly  with  the  probate  of  wills  and  the 
settlement  of  testate  estates.  The  validity  of  a  will  depends 
upon  the  mode  of  its  execution,  the  mental  capacity  of  the 
testator,  and  the  conformity  of  its  provisions  to  the  law. 
The  purpose  of  the  probate  of  a  will  is  to  subject  the  ques- 
tion of  its  validity  to  a  judicial  inquiry,  and  if  found  valid 
to  establish  it  by  a  conclusive  judgment  against  all  objections 
to  its  legal  sufficiency.  A  will  must  be  offered  for  primary 
probate  to  the  court  in  whose  jurisdiction  the  testator  had 
his  domicile  at  the  time  of  his  death,  and  being  established 
there  it  may  afterwards  be  presented  for  ancillary  probate  in 
any  other  State  in  which  the  property  of  the  deceased  may 
be  discovered,  (a)  Upon  the  probate  of  a  will  the  executor 
named  therein,  or  a  substitute  appointed  for  him  by  the 
court,  proceeds  to  settle  the  estate  according  to  its  terms. 
receiving  such  guidance  from  the  court  and  rendering  to  it 
such  accounts  and  returns  as  his  duties  under  tin'  will  or 
under  the  provisions  of  the  general  Law  may  require. 
Read  («)  54  I).  515,  note. 


312  AMERICAN   JURISPRUDENCE.  §§  337,  338 

§  337.  Of  the  Jurisdiction  of  the  Courts  of  Probate  over 
Intestate  Estates. 
An  intestate  estate  is  one  of  which  the  deceased  owner  has 
made  no  testamentary  disposition.  The  law  provides  for  the 
distribution  of  such  estates  among  the  creditors  and  relatives 
of  the  deceased,  and  for  the  purpose  of  securing  this  distribu- 
tion vests  in  the  probate  court  of  his  domicile  authority  to 
appoint  an  agent  or  administrator  to  collect,  preserve,  and, 
if  necessary,  to  sell  the  property,  and  to  apply  it  to  its  desig- 
nated uses.  This  administrator  is  the  servant  of  the  probate 
court  and  acts  under  its  direction,  reporting  to  it  his  various 
proceedings  and  filing  among  its  records  an  account  of  his  dis- 
bursements and  receipts,  (a)  The  acceptance  and  approval  of 
these  accounts  and  reports  by  the  court  is  in  the  nature  of  a 
judgment  as  to  their  correctness  and  cannot  be  collaterally 
attacked,  (b) 

Read  2  Kent,  Lect.  xxxvii,  pp.  408-436;  Walker,  Lect.  xviii. 
(a)  18  D.  110,'  note  ;  30  R.  746,  note  ;  47  R.  458,  note; 

52  St.  116,  note. 
(6)  14  D.  642 ;  48  D.  742,  note  ;  60  D.  335,  note;  24  St. 

399. 


§  338.    Of    the     Jurisdiction    of    the    Courts   of    Probate    over 
Guardians  and  Trustees. 

As  a  general  rule,  when  a  probate  court  has  jurisdiction 
over  guardianships  and  trusts  its  jurisdiction  in  particular 
cases  is  determined  by  the  domicile  of  the  ward  or  the  loca- 
tion of  the  property.  In  the  appointment  of  trustees  and 
guardians  it  is  its  duty  to  select  persons  of  ability  and  integ- 
rity, to  hold  them  to  a  strict  performance  of  their  duties,  and 
to  preserve  their  returns  and  accounts  among  its  records.  It 
may  remove  them  for  misconduct,  or  permit  them  to  resign 
and  appoint  others  in  their  stead.  In  some  States  it  may  en- 
force their  compliance  with  its  orders  by  an  attachment  for 
contempt ;  in  others  only  by  their  removal  and  by  suit  upon 
their  bonds,  (a) 

Read  (a)  73  D.  555,  note. 


§§  339, 340  courts  of  admiralty.  315 

§  339.    Of  the  Importance  of  Courts  of  Probate. 

The  probate  courts,  although  of  limited  and  special  jurisdic- 
tion, are  among  the  most  important  of  our  judicial  tribunals. 
Eventually  all  property  passes  through  their  hands,  and  every 
person  having  or  acquiring  property  becomes  subject  to  their 
decrees.  At  any  given  moment  a  large  proportion  of  the 
interests  of  the  entire  community  are  under  their  control,  and 
to  their  successful  management  is  due  in  a  great  measure 
the  security  of  estates  and  the  stability  of  families.  Their 
records,  in  connection  with  the  land  records  of  the  country, 
furnish  a  detailed  history  of  the  accumulation  and  transmis- 
sion of  real  and  personal  property,  of  great  value  to  the  law- 
yer, of  deep  interest  to  the  economist,  and  full  of  unexplored 
secrets  for  the  genealogist  and  statistician. 


SECTION   V. 

OF    THE    COURTS    OF   ADMIRALTY. 

§  340.    Of  the  Nature  of  Admiralty  Jurisdiction. 

The  courts  of  admiralty  have  jurisdiction  over  controversies 
arising  out  of  maritime  affairs.  So  far  as  the  essential  nature 
of  these  affairs  is  concerned  they  might,  equally  with  any 
others,  be  within  the  cognizance  of  local  courts  of  law  or 
equity.  A  ship  and  its  cargo  are  personal  property,  and  as  such 
might  be  governed  by  the  same  law  which  controls  other 
personal  property.  An  agreement  between  the  master  of  a 
vessel  and  his  crew,  or  between  its  owner  and  the  shippers  or 
consignees  of  its  freight,  or  a  wrong  by  one  of  these  against 
the  others,  does  not  differ  as  a  mere  tort  or  contract  from  simi- 
lar transactions  relating  to  commerce  upon  land.  But  mari- 
time affairs,  being  conducted  upon  the  sea,  often  involve  the 
interests  of  citizens  of  divers  countries  whose  local  laws  are 
quite  unlike  to  one  another,  and  these  must  have  some  com- 
mon standard  by  which  their  reciprocal  rights  and  duties  can 
be  measured,  and  some  common  tribunal  to  which  they  can 


314  AMERICAN    JURISPRUDENCE.  §  341 

all  resort  and  with  whose  methods  of  procedure  all  can  be 
familiar.  Moreover,  the  redress  for  injuries  which  these  tri- 
bunals can  afford  must  take  some  other  form  than  decrees  and 
orders  against  persons  who,  being  inhabitants  of  foreign  States, 
are  beyond  the  reach  of  any  process  by  which  such  orders 
and  decrees  can  be  enforced.  Most  maritime  affairs  relate  to 
vessels  and  their  cargoes,  —  the  navigation  of  the  one,  the 
transportation  of  the  other,  — and  it  is  only  when,  by  treating 
the  vessel  or  the  cargo  as  a  party  to  the  tort  or  contract,  the 
courts  in  any  port  into  which  she  enters,  and  where  she  may 
conduct  her  maritime  affairs,  can  acquire  jurisdiction  by  seizing 
her,  and  can  enforce  their  judgments  by  her  sale  and  the  ap- 
propriation of  her  proceeds  to  the  satisfaction  of  the  injured 
parties,  that  any  adequate  and  certain  remedy  for  their  wrongs 
can  be  obtained.  But  such  proceedings  are  unknown  in  courts 
of  common  law,  and  can  be  resorted  to  in  equity  only  in  the 
rarest  cases  and  when  some  sort  of  jurisdiction  over  the 
parties  interested  in  the  property  can  be  obtained.  For  these 
two  reasons, — the  necessity  in  all  commercial  countries  for 
courts  of  universal  jurisdiction  and  of  uniform  procedure,  and 
for  a  remedy  against  the  res  or  thing  out  of  whose  use  the 
controversy  grows,  —  the  admiralty  courts  have  been  estab- 
lished with  powers  by  which  they  are  enabled  to  administer 
justice  between  the  parties  to  a  maritime  controversy  in  what- 
ever portion  of  the  globe  they  may  reside,  (a) 
Read  (a)  12  D.  50S,  note  ;  G2  D.  214,  note. 


§  341.  Of  the  Origin  and  Development  of  Admiralty  Jurisdic- 
tion. 
The  law  of  shipping  and  admiralty  had  its  origin  in  the 
customs  of  the  early  navigators  of  the  ancient  world.  These 
usages,  resulting  from  sound  reason  and  sagacious  instinct  ap- 
plied to  maritime  affairs,  were  recognized  and  accepted  by  one 
nation  after  another  until  they  have  become  the  law  wherever 
commerce  on  the  sea  prevails.  These  usages  were  first  col- 
lected, digested,  and  promulgated  as  laws  by  the  mariners  of 


§  341  COURTS    OF    ADMIRALTY.  315 

Rhodes,  who  were  the  masters  of  the  seas  nine  hundred  years 
before  the  birth  of  Christ.  Athens  and  Rome  received  the 
Rhodian  laws  as  part  of  the  law  of  nations,  and  by  them  for  many 
centuries  all  the  maritime  transactions  of  the  Mediterranean 
and  Atlantic  coasts  were  governed.  After  the  destruction  of 
the  Roman  Empire  new  codes  of  sea-laws  were  compiled;  one 
by  the  republic  of  Amalfi  in  Italy  about  the  close  of  the  elev- 
enth century  and  called  the  Amalphitan  Table  ;  another  at 
Barcelona  known  as  the  Consolato  del  Mare;  another  at  the 
Island  of  Oleron  in  France,  thence  styled  the  Laws  of  Oleron ; 
another  at  Wisbuy,  a  commercial  city  on  the  Baltic,  about  a.  d. 
12S8;  and  still  another  by  the  Hanseatic  League  in  a.  d.  1614. 
All  these  codes  were  built  upon  the  foundation  of  the  Rhodian 
laws,  with  alterations  and  additions  necessary  to  adapt  them 
to  the  needs  of  mediaeval  commerce.  In  a.  n.  1681  they  were 
in  a  great  measure  superseded  by  the  French  '•'  Marine  Ordi- 
nance," which  was  framed  and  published  under  the  auspices 
of  Louis  XIV.  In  it  the  whole  law  of  shipping  was  syste- 
matically arranged,  and  it  has  always  been  regarded  as  a 
perfect  code  of  maritime  jurisprudence.  In  England  and 
the  United  States  no  such  formal  statement  of  the  law  has 
ever  been  attempted.  Their  admiralty  courts  have  followed 
the  principles  and  rules  contained  in  the  continental  codes  so 
far  as  these  appeared  consistent  with  the  commercial  interests 
of  their  respective  nations,  and  the  decisions  of  those  courts 
in  connection  with  the  Acts  of  Congress  relating  to  maritime 
affairs  now  form  the  body  of  our  admiralty  law.  The  mari- 
time law  thus  has  a  written  Jiistory  of  nearly  three  thousand 
years,  and  from  that  early  date  still  reaches  backward  into  an 
unknown  past.  In  spite  of  its  mutations  and  development  its 
great  principles  and  usages  have  undergone  no  substantial 
change.  It  does  not  lie  within  the  power  of  any  nation  to 
vary  its  essential  provisions.  It  rests  on  the  common  consent 
of  all  commercial  States,  and  is  presumed  to  be  binding  on 
every  vessel  until  the  contrary  is  proved.  In  its  administra- 
tion it  is  treated  by  the  admiralty  courts  of  all  civilized  coun- 
tries with  the  respect  due  to  the  law  of  nations,  to  which 
it  properly  belongs,  since,  though  it  affects  mainly  private  in- 


316  AMERICAN   JURISPRUDENCE.  §  342 

terests,  these  interests  are  within  the  immediate  protection  of 
the  State  under  whose  flag  the  commerce  is  conducted,  (a) 
Read  3  Bl.  Com.,  pp.  GO,  70 ;  3  Kent,  Lect.  xlii,  pp.  2-21. 

(a)  14  Wall.  170  (187,  188);   105  U.  S.  21;  130  U.  S. 
527  ;  HI  U.  S.  1. 


§  342.    Of  Maritime  Torts  and  Contracts. 

Maritime  affairs,  over  controversies  arising  out  of  which 
admiralty  courts  have  jurisdiction,  are  affairs  directly  con- 
nected with  commerce  upon  waters  forming  a  highwa}'  between 
different  States.  The  civil  injury  in  which  the  controversy 
originates  must  be  a  marine  tort  or  the  breach  of  a  marine 
contract.  A  marine  tort  is  a  wrongful  action  or  omission 
occurring  on  the  waters  over  which  the  commerce  is  carried 
on.  (<i)  A  marine  contract  is  a  contract  concerning  the  com- 
merce itself,  (b)  Contracts  relating  to  something  hereafter 
to  be  employed  in  commerce,  like  a  contract  to  build  a  ship, 
or  relating  to  the  results  of  past  commerce,  like  the  agreement  of 
the  owners  of  a  vessel  to  account  to  one  another  for  the  profits 
of  a  voyage,  are  not  marine  contracts,  and  a  breach  of  these  is 
actionable  only  in  courts  of  equity  or  common  law.  (c)  But  a 
contract  to  repair  a  ship  already  engaged  in  commerce  in  order 
to  enable  her  to  proceed  to  her  destination,  or  a  contract  be- 
tween the  master  and  the  crew  who  are  to  navigate  the  ship,  are 
maritime  in  character,  and  are  within  the  cognizance  of  admi- 
ralty courts.  Admiralty  jurisdiction  is  sometimes  spoken  of 
as  extending  over  certain  waters,  and  again  is  said  to  embrace 
the  controversies,  not  the  waters.  Its  jurisdiction  .over  torts, 
and,  where  it  has  jurisdiction  over  crimes,  of  these  also,  is 
determined  by  locality,  and  in  reference  to  these  is  therefore 
measured  by  the  waters  ;  over  contracts  it  is  determined  by 
the  maritime  subject-matter  of  the  contract  wherever  the  con- 
tract itself  may  have  been  executed.  The  waters  which  in 
this  sense  are  within  the  jurisdiction  of  the  admiralty  courts 
include  every  body  of  water  which  in  its  natural  state  is  large 
enough  to  afford  passage  for  vessels  suitable  for  use  in  com- 
merce, and  is  so  connected  with  other  waters  as  to  provide  an 


§  343  COURTS   OF    ADMIRALTY.  317 

uninterrupted  highway  from  one  State  to  another,  together 
with  such  artificial  waters  as  may  form  the  connecting  links 
between  them.  In  England  only  tidal  waters  answer  this  de- 
scription, and  in  this  country  also  admiralty  jurisdiction  was 
at  first  confined  to  waters  affected  by  the  tides,  but  now  ex- 
tends to  inland  lakes  and  rivers  not  connected  with  the  sea. 
Any  commerce  in  such  waters,  though  it  be  confined  to  ports 
of  the  same  State,  gives  to  the  contracts  which  it  involves  a 
marine  character,  and  brings  them  within  the  cognizance  of 
admiralty  courts,  (d) 

Read  3  Bl.  Com.  pp.  106-108. 

(a)  23  How.  209  (215,  210);  13  D.  504,  note ;  95  D.  722; 

105  U.  S.  026 ;  1  Black,  574  ;  114  U.  S.  355. 

(b)  7  Wall.  024;  20  How.  102;  13  R.  270,  note. 

(c)  21  Wall.  532  ;  20  How.  393  ;  11  Pet.  175;  22  How. 

330. 
(rf)  20  Wall.  430:  11  Wall.  411 ;  12  Pet.  72;  20  How.  296; 
8  Wall.  15;  4  Wall.  555. 


§  343.  Of  the  Concurrent  Jurisdiction  of  the  Courts  of  Admi- 
ralty and  the  Courts  of  Equity  and  Common  Law. 
The  jurisdiction  of  the  admiralty  courts  over  maritime 
affairs  is  not,  however,  necessarily  exclusive  of  that  of  the 
courts  of  equity  and  common  law.  A  marine  tort  or  contract 
is  in  its  tort  or  contract  character  like  any  other  tort  or 
contract,  and  when  process  issuing  from  an  ordinary  court 
can  Bring  all  the  parties  within  its  jurisdiction,  and  a  judg- 
ment for  damages  or  an  enforced  decree  in  equity  would 
meet  the  requirements  of  the  situation,  the  suitors  are  not 
compelled  to  institute  proceedings  in  the  admiralty  courts 
merely  because  the  contract  was  connected  with  commercial 
operations  ot  the  tort  was  committed  upon  waters  within  the 
admiralty  jurisdiction,  (a)  But  when  no  adequate  relief  can 
be  obtained  without  a  suit  against  the  ship  itself,  this  pro- 
ceeding must  be  brought  before  the  admiralty  courts,  no 
other  courts  being  capable  of  entertaining  such  an  action.  (A) 

Read  (a)  26  1).  507;  32  D.  54,  note :  16  Wall.  522 ;  74  1).  463. 
(6)  11  Wall.  185;  10  St.  292. 


318  AMERICAN    JURISPRUDENCE.  §  344 

§  344.    Of  the  Topical  Jurisdiction  of  Courts  of  Admiralty. 

The  principal  classes  of  actions  brought  before  the  admi- 
ralty courts  are  the  following:  (1)  Prize  cases,  for  the  deter- 
mination of  the  title  to  vessels  captured  in  war  (a);  (2)  Cases 
arising  out  of  the  seizure  of  vessels  or  cargoes  for  the  viola- 
tion of  revenue  laws  (b) ;  (3)  Cases  of  collision  between  vessels 
on  navigable  waters  (c) ;  (4)  Cases  concerning  the  possession 
or  ownership  of  vessels  already  engaged  in  commerce  (e?)  j 
(5)  Cases  involving  a  maritime  lien,  that  is,  a  lien  upon  the 
movable  property  employed  in  commerce  and  to  the  existence 
and  continuance  of  which,  unlike  a  common  law  lien,  the 
possession  of  the  property  subject  to  the  lien  is  unneces- 
sary (<?) ;  (6)  Cases  arising  out  of  charter-parties,  or  contracts 
for  the  hiring  of  vessels  (/) ;  (7)  Cases  based  on  contracts  for 
the  navigation,  provisioning,  repair,  custody,  loading  or  un- 
loading of  vessels;  (8)  Cases  of  marine  insurance^);  (9)  Cases 
of  salvage,  or  claims  for  compensation  for  the  voluntary 
rescue  of  ships  and  cargoes  from  marine  perils  (//);  (10)  Cases 
concerning  claims  for  pilotage,  wharfage,  towage,  freight, 
passenger  fares,  and  demurrage  or  pay  for  the  unreasonable 
detention  of  a  vessel  at  the  port  of  discharge  through  the 
failure  of  the  consignee  to  take  away  her  cargo  (/);  (11)  Cases 
growing  out  of  injuries  of  any  kind,  by  violence,  negligence, 
or  otherwise,  to  persons  or  property  while  actually  upon  the 
water,  —  as  an  assault  on  board  a  vessel,  or  injury  to  the 
vessel  from  collision  with  a  pier,  but  not  when  the  wharf  is 
d  imaged  by  the  vessel  or  the  assault  takes  place  on  shore,  or 
any  other  harm  is  done  on  the  land  by  causes  which  com- 
mence but  do  not  produce  injurious  effects  upon  the  sea.  (,;') 
Read  (a)  2  D.  634. 

(b)  9  Wheat.  421. 

(c)  114  U.  S.  355. 

(d)  18  How.  2G7. 

(e)  7  Wall,  624  ;  10  Wall.  204 :  6  Wall.  213. 
(/)  23  How  491. 

(g)  11  Wall.  1. 

(A)  59  D.  431. 

(/)    13  Wall.  236. 

0)  3  Wall.  20 ;  5  How.  441 ;  G  How.  344. 


§§  345, 346  courts  of  admiralty.  319 

§  345.    Of  Admiralty  Jurisdiction  in  Rem. 

The  chief  peculiarity  and  advantage  of  courts  of  admiralty 
is  the  proceeding  in  rem  by  which  the  vessel  itself  is  made  a 
parjgJi0  the  suit^and  subjected  to  the  claims  of  creditors  and 
other  injured  parties,  (a)  This  proceeding  may  be  instituted 
in  any  admiralty  court  where  the  vessel  may  be  found,  (b) 
It  requires  that  the  vessel  be  within  reach  of  process  and  be 
actually  taken  into  the  custody  of  the  law.  (c)  With  it  may 
be  joined  a  proceeding  in  personam  against  the  owners  or 
other  parties  whenever  they  also  can  be  brought  within  the 
jurisdiction  of  the  court.  All  parties  in  interest  are  entitled 
to  such  notice  of  the  seizure  of  the  property  as  the  court  is 
able  to  give,  and  if  any  of  them  appear  the  property  may  be 
released  upon  the  substitution  of  sufficient  security.  If  judg- 
ment is  rendered  against  the  vessel  it  is  conclusive  every- 
where and  against  all  persons  who  have  any  interest  in  her 
or  claim  upon  her,  and  when  she  is  sold  her  proceeds  are 
deposited  in  the  register,  or  record  office  of  the  court,  for  dis- 
tribution among  those  to  whom  the  court  may  find  that  they 
belong.  (cZ)  The  title  of  the  purchaser  at  such  a  sale  is  abso- 
lute, and  not  embarrassed  by  any  liens  or  obligations  exist- 
ing prior  to  the  sale,  (e) 

Read  (a)  75  I).  714,  note. 

(b)  4  Cranch,  2  ;  I  Cranch.  241  ;  1  Black,  574(580,  581). 

(c)  23  Wall.  458 ;  99  D.  556. 

(d)  3  How.  508. 

(e)  2  D.  61 ;  16  D.  199;  48  D.  590. 


§  346.    Of  Proceedings  in  Admiralty. 

The  pleadings  and  procedure  in  admiralty  courts  are  very 
similar  to  those  in  equity.  They  are  commenced  by  filing 
with  the  clerk  a  petition  or  libel  in  which  the  libellant  sets 
forth  his  cause  of  action  in  distinct  propositions  or  articles 
and  in  ordinary  language,  and  prays  f<>r  process  against  the 
vessel  or  the  libellees  or  both  and  for  such  relief  as  his  cause 
demands.  The  adverse  parties,  if  any  appear,  present  their 
answer  in  a  similar  way;  the  libellant  amends  his  libel  to 


320  AMERICAN   JURISPRUDENCE.  §  347 

meet  the  answer  if  he  so  desires;  and  on  the  issues  thus 
created  the  cause  is  tried  and  decided  by  the  court.  Any 
persons  interested  in  the  property  as  lienors,  lessees,  or  other- 
wise may  apply  to  the  court  for  the  protection  of  their  inter- 
ests, and  will  be  permitted  to  become  parties  to  the  suit  so 
far  as  may  be  necessary  to  secure  their  rights,  (a)  The  deci- 
sions of  admiralty  courts  are  guided  by  broad  principles  of 
equity  and  justice  rather  than  any  technical  rules,  and  the 
flexibility  of  their  procedure  enables  them  to  apply  their 
remedies  to  any  aspect  which  cases  may  present.  From 
such  decisions  in  inferior  courts  of  admiralty  an  appeal  lies 
to  higher  courts  in  which  the  merits  of  the  case  can  be 
reviewed,  (b) 

Read  Walker,  Lect.  xxxix. 
(a)  1  Pet.  547. 
lb)  5  Cranch,  281  ;  19  Wall.  73. 


§  347.  Of  the  Courts  Exercising  Admiralty  Jurisdiction  in  Eng- 
land and  the  United  States. 
In  England  before  the  Revolution  admiralty  jurisdiction 
was  vested  in  a  special  court  established  in  the  reign  of 
Edward  III.,  and  presided  over  by  the  Lord  High  Admiral. 
In  the  American  colonies  at  the  same  time  vice-admiralty 
courts  existed  with  similar  jurisdiction,  but  from  which  par- 
ties could  appeal  to  the  High  Admiral's  court  in  the  mother 
country.  P>y  the  Constitution  of  the  United  States  all  cases 
of  admiralty  and  maritime  jurisdiction  were  made  judicially 
cognizable  by  the  Federal  courts,  and  this  jurisdiction  has 
been  uniformly  held  to  be  exclusive  as  to  all  cases  of  prize 
and  all  marine  torts  and  contracts  when  the  proceeding  is  in 
rem.  Congress  in  establishing  the  Federal  courts  and  dis- 
tributing among  them  the  judicial  powers  of  the  United 
States,  has  confided  these  cases  to  the  District  Courts,  with 
appellate  jurisdiction  in  the  Circuit  Courts,  and  in  these 
tribunals  all  purely  admiralty  jurisdiction  in  this  country  now 
resides,  (a) 

Read  («)  13  Wall.  389;  21  Wall.  558. 


§§  348,  349  courts  martial.  321 


SECTION  VI. 

OF    COURTS    MARTIAL,    MILITARY    COURTS,    AND    PROVISIONAL 

COURTS. 

§  348.    Of  Courts  of  Extraordinary  Jurisdiction. 

The  foregoing  courts  afford  effective  and  abundant  remedies 
for  the  redress  of  public  and  private  wrongs  in  civil  life  and 
in  the  times  of  peace.  But  for  the  punishment  of  offences 
against  the  rigid  rules  by  which  the  military  and  naval  forces 
of  the  State  are  governed,  and  for  the  administration  of 
justice  in  those  periods  of  political  disturbance  when  in  the 
presence  of  arms  all  laws  are  silent,  other  tribunals  become 
necessary  which,  being  clothed  with  extraordinary  powers 
and  guided  by  the  judicial  discretion  of  the  moment  rather 
than  by  settled  principles  of  law,  will  be  able  to  meet  the 
emergency,  however  great  it  may  be,  and  hold  the  scales  of 
justice  even  until  peace  can  be  restored.  These  courts  as 
recognized  and  exercising  jurisdiction  in  this  country  are 
known  as  Courts  Martial,  Military  Courts,  and  Provisional 
Courts. 


§  349.    Of  Courts  Martial. 

Courts  Martial  are  tribunals  established  for  the  trial  of 
offences  committed  by  persons  connected  with  the  army  or 
navy  in  violation  of  the  provisions  of  military  law.  Military 
Law  is  the  law  governing  the  military  forces  as  a  separate 
community.  Its  rules  are  prescribed  by  the  State  and  become 
obligatory  upon  the  individual  when  he  enlists  or  is  con- 
scripted into  the  public  service,  (a)  They  are  necessarily 
burdensome  and  imperative,  and  any  offence  against  them 
requires  a  punishment  at  once  summary  and  severe.  The 
trial  of  persons  accused  of  such  offences  must  often  be 
immediate  and  be  conducted  at  the  place  where  the  offence 
occurred,  and  by  such  competent  judges  as  can  be  trusted  with 
the  infliction  of  the  penalty  of  death.     Courts  Martial  com- 

21 


322  AMERICAN    JURISPRUDENCE.  §  350 

posed  of  military  or  naval  officers  selected  by  the  commander 
in  pursuance  of  the  Military  Law,  conversant  from  long 
experience  with  the  rules  against  which  the  alleged  offence 
has  been  committed,  easily  convened  whenever  the  occasion 
may  arise,  pursuing  their  investigations  by  direct  and  expedi- 
tious methods,  are  the  tribunals  to  which  such  cases  are  com- 
mitted by  modern  nations.  These  courts  are  of  limited  and 
special  jurisdiction.  In  this  country  they  rest  wholly  upon 
Acts  of  Congress,  and  have  no  jurisdiction  over  persons  not 
enrolled  or  liable  to  be  enrolled  in  the  army  or  navy  of  the 
United  States.  Their  action  is  subject  to  the  approval  of  the 
commanding  officer  and  sometimes  of  the  President,  whose 
authority  to  ratify  or  set  aside  their  judgment  is  judicial  and 
therefore  cannot  be  delegated,  (b)  Where  a  Court  Martial 
assumes  unwarrantable  jurisdiction  over  any  person  he  may 
be  released  by  habeas  corpus,  the  judgment  of  the„  court  may 
be  reversed  by  the  civil  courts,  and  damages  recovered  against 
all  parties  who  participated  in  the  wrong,  (c)  But  its  deter- 
minations within  its  jurisdiction  are  conclusive  and  cannot  be 
collaterally  attacked  on  the  ground  that  no  offence  existed  or 
was  proved.  (W) 

Read  1  Bl.  Com.,  pp.  408-421;  Cooley,C.  Law,  Ch.  vi,  p.  156. 

(a)  137  U.  S.  147. 

(b)  122  U.  S.  543 ;  97  U.  S.  509. 

(c)  20  How.  65. 

(d)  165  U.  S.  553. 


§  350.    Of  Military  Courts. 

Military  Courts  are  temporary  tribunals  organized  to  try 
offences  against  Martial  Law  and  the  Laws  of  War  in  periods 
of  public  disturbance  when  the  ordinary  courts  become  unable 
on  account  of  the  disturbance  to  perform  judicial  duties. 
Martial  Law  is  the  body  of  rules  established  by  a  military 
commander  at  the  actual  theatre  of  military  operations  or  in 
any  other  district  where  the  popular  sentiment  in  favor  of 
peace  and  order  is   so  far  destroyed  that  the  courts  cannot 


§  351  MILITARY   AND   PROVISIONAL   COURTS.  323 

exercise  their  usual  jurisdiction,  and  consequently  the  ordi- 
nary provisions  of  the  law  cannot  be  enforced.  Martial  Law 
binds  all  persons  within  the  disturbed  district  whether  they 
are  citizens  or  soldiers,  and  may  include  any  rules  which  in 
the  judgment  of  the  military  commander  who  declares  it 
may  be  necessary  for  the  protection  and  preservation  of  the 
community  or  for  the  prevention  of  acts  of  hostility  against 
the  State,  (a)  The  Laws  of  War  are  those  provisions  of  inter- 
national law  which  control  the  conduct  of  military  operations 
and  the  reciprocal  relations  of  an  invading  army  and  the 
inhabitants  of  the  hostile  territory  into  which  it  has  advanced. 
The  jurisdiction  of  a  Military  Court  over  offences  against 
Martial  Law  is  measured  by  the  same  necessity  which  justifies 
the  promulgation  of  the  law.  Any  offence,  not  purely  of  a 
military  character, -of  which  the  civil  courts  are  then  able  to 
take  cognizance  falls  within  their  exclusive  authority,  and  in 
proportion  as  order  is  restored  and  judicial  tribunals  can 
again  discharge  their  functions  the  scope  of  Martial  Law  and 
the  authority  of  Military  Courts  must  be  restricted  until  they 
wholly  disappear. 

Read  Cooley,  C.  Law,  Ch.  vi,  pp.  156,  157. 

(a)  42  D.  51,  note ;  92  D.  159,  note ;  4  Wall.  2. 


§  351.    Of  Provisional  Courts. 

Provisional  Courts  are  temporary  courts  established  by  a 
conquering  State  in  conquered  territory  occupied  by  its  mili- 
tary forces,  for  the  purpose  of  preserving  order  and  protecting 
persons  and  property  until  the  normal  operations  of  the  civil 
government  can  be  resumed.  These  tribunals  closely  resemble 
military  courts,  and  the  laws  which  they  administer  depend 
largely  for  their  character  and  obligation  upon  the  military 
authority  within  whose  grasp  the  territory  is  held.  The 
municipal  laws  of  the  region  may  be  respected  and  their  appli- 
cation may  be  entrusted  to  the  local  magistrates,  or  other  laws 
and  other  courts  may  be  created  in  their  place;  or  civil  rights 
and  remedies  may  be  entirely  suspended  and  for  them  martial 


324  AMERICAN   JURISPRUDENCE.  §  352 

law  and  military  tribunals  may  be  substituted.  The  com- 
mander of  an  army  of  occupation  is  always  for  the  time  being 
a  de  facto  government,  the  institutions  erected  by  him  depend 
upon  his  own  discretion,  and  his  acts  are  subject  to  be  reversed 
only  by  his  military  superiors  or  their  common  sovereign,  (a) 
Read  (a)  22  Wall.  276. 


SECTION  VII. 

OF  THE  FEDERAL  AND  STATE  COURTS. 

§  352.    Of  the  Federal  Courts. 

The  courts  in  this  country  are  politically  divisible  into  two 
groups  :  (1)  The  Federal  Courts ;  and  (2)  The  Courts  of  Indi- 
vidual States  and  Territories.  The  Federal  Courts  administer 
justice  in  the  name  and  under  the  authority  of  the  United 
States.  They  are  established  by  the  Federal  Constitution  or, 
in  pursuance  of  the  Constitution,  by  the  Acts  of  Congress,  and 
are  wholly  independent  of  the  laws  of  any  of  the  individual 
States. (a)  The  jurisdiction  of  these  courts,  according  to  the 
Constitution,  extends  to  all  cases  in  law  and  equity  arising 
under  the  Constitution  or  the  laws  of  the  United  States  and 
treaties  made  under  their  authority ;  to  all  cases  affecting 
ambassadors,  public  ministers,  and  consuls  ;  to  all  cases  of 
admiralty  and  maritime  jurisdiction  ;  to  controversies  to  which 
the  United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  States,  or  between  a  State  and  citizens  of  another 
State,  or  between  citizens  of  different  States,  or  between  citi- 
zens of  the  same  State  claiming  lands  under  grants  of  different 
States,  or  between  a  State  or  the  citizens  thereof  and  foreign 
States,  citizens,  or  subjects.  This  general  jurisdiction  has 
been  distributed  by  successive  Acts  of  Congress  through  a 
system  now  composed  of  six  courts :  (1)  The  Supreme  Court 
of  the  United  States ;  (2)  The  Circuit  Courts  of  Appeals  ; 
(3)  The  Circuit  Courts  ;  (4)  The  District  Courts  ;  (5)  The 
Court  of  Claims ;  (6)  The  Courts  of  the  District  of  Columbia. 
The  jurisdiction  of  the  Supreme  Court  is  fixed  by  the  Consti- 


§§  353,  354  FEDERAL   COURTS.  325 

tutioti ;  that  of  the  inferior  courts  is  changed  from  time  to 
time  by  statute  as  public  convenience  may  require. 

Read  1  Keut,  Lect.  xiv.  pp.  290-297,  306-311,  Lect.  xvi,  pp. 
313-352;  Cooley,  C  Law,  Ch.  iii,  pp.  52-51,  Ch. 
vi.  pp.  123-123,'  129-133,  115-148;  Walker,  Lect. 
viii,  pp.  109,  115-120. 
(a)  9  Pet.  632  ;  6  Wall.  217  ;  5  Craiich,  115  ;  11  Pet.  175; 
18  How.  517;  20  How.  170  (175) ;  100  U.  S.  257. 

§  353.    Of  the  Supreme  Court  of  the  United  States. 

The  Supreme  Court  of  the  United  States  has  original  juris- 
diction over  all  cases  affecting  ambassadors,  public  ministers, 
and  consuls,  and  those  in  which  a  State  may  be  a  party.  In 
other  cases  its  jurisdiction  is  appellate  only.  It  may  entertain 
appeals  directly  from  the  Circuit  an  I  District  courts  in  con- 
troversies concerning  the  jurisdiction  of  the  court,  in  prize 
cases,  in  criminal  cases  involving  the  infliction  of  capital  or 
infamous  punishment,  in  oases  necessitating  the  construction 
and  application  of  a  provision  of  the  Constitution  or  a  treaty 
or  an  Act  of  Congress,  or  where  antagonism  appears  between 
a  State  law  and  the  laws  of  the  United  States.  From  the  Cir- 
cuit Court  of  Appeals  an  appeal  lies  to  the  Supreme  Court 
where  the  amount  in  controversy  exceeds  one  thousand  dollars 
except  in  patent,  revenue,  admiralty,  an  1  criminal  cases  and 
cases  where  the  only  ground  of  Federal  jurisdiction  is  the 
different  citizenship  of  the  parties.  Any  question,  however, 
may  be  presented  by  the  Circuit  Court  of  Appeals  to  the 
Supreme  Court  for  final  decision  when  its  difficulty  and  im- 
portance  warrant  such  an  application. 

Read  1  Kent,  Lect.  xiv.  pp.  238-301,  312-330:  Walker,  Lect. 
viii,  pp.  120-122;  Cooley,  C.  Law,  Ch.  vi,  pp.  128, 
129. 

$  354.    Of  the  Circuit  Courts  of  Appeals. 

The  Circuit  C  >urt  of  Appeals  is  a  tribunal  established  by 
the  Act  of  1S91  to  relieve  the  Supreme  Court  from  the  heavy 
bur  1  mis  imposed  upon  it  by  the  rapi  Uy  increasing  numb'r  o£ 
appeals  from  lower  courts,  both  State  and  Federal.     It  ha3  n  > 


326  AMERICAN    JURISPRUDENCE.         §§  355,  356 

original  jurisdiction.  All  appealed  cases  except  those  within 
the  exclusive  cognizance  of  the  Supreme  Court  may  come 
before  it,  and  in  reference  to  many  of  these  its  decision  is 
final. 

§  355.    Of  the  Circuit  Courts. 

The  Circuit  Courts  have  original  jurisdiction  over  all  cases 
at  common  law  or  equity  in  which  the  amount  in  controversy 
exceeds  two  thousand  dollars  "besides  the  interest  and  costs, 
an  1  in  which  the  interpretation  of  the  Federal  Constitution 
or  an  Act  of  Congress  or  a  treaty  is  required  (a) ;  or  in  which 
the  United  States  is  the  plaintiff,  or  the  parties  are  citizens 
of  different  States  (b)  or  are  citizens  of  the  same  State  claim- 
ing the  same  land  under  grants  from  different  States;  or 
where  the  suit  is  brought  by  a  citizen  of  the  United  States 
against  a  foreign  State  or  its  citizens;  or  where  any  person 
has  a  cause  of  action  against  the  United  States  in  which  the 
claim  exceeds  one  thousand  dollars  and  is  less  than  ten  thou- 
sand dollars;  or  where  a  suit  in  equity  is  necessary  to  protect 
a  trust  and  the  case  is  otherwise  within  Federal  jurisdiction; 
or  where  the  case  arises  under  the  patent,  copyright,  or 
revenue  laws  or  other  special  statutes ;  or  where  crimes  have 
be3n  committed  against  the  laws  of  the  United  States;  pro- 
vided always  that  the  controversy  is  not  within  the  exclusive 
jurisdiction  of  any  other  Federal  court.  The  appellate  juris- 
diction of  these  courts  was  formerly  extensive,  but  has  now 
been  transferred  to  the  Circuit  Court  of  Appeals. 

Read  1  Kent,  Lect.  xiv,  pp.  301-303;  Walker,  Lect.  viii,  pp. 
123,  124. 

(a)  128  U.  S.  586;  153  U.  S.  411  (424). 

(b)  119  U.  S.  469. 

§  356.    Of  the  District  Courts. 

The  District  Courts  have  original  jurisdiction  over  all 
admiralty  and  maritime  controversies;  over  all  suits  at  com- 
mon law  by  the  United  States  or  its  officers;  over  actions  by 
aliens  for  violations  of  international  law;  over  equitable 
proceedings  to  enforce  liens  of  the  United  States  for  revenue 


§§  357,  358  FEDERAL   COURTS.  327 

taxes;  over  suits  for  penalties  and  forfeitures  due  to  the 
United  States;  over  torts  committed  against  the  civil  rights 
of  persons  of  color  in  violation  of  Constitutional  Amend- 
ments; over  claims  against  the  United  States  not  exceeding 
one  thousand  dollars;  over  all  matters  in  bankruptcy  under 
the  Bankrupt  Acts  of  Congress;  over  crimes  against  the 
United  States  which  do  not  incur  capital  or  infamous  punish- 
ment; and  over  the  capital  offence  of  piracy  when  there  is  no 
Circuit  Court  in  the  District,  (a) 

Read  1  Kent,  Lect.  xiv,  pp.  303-305,  Lect.  xvii,  pp.  353-384 ; 
Walker,  Lect.  viii,  pp.  124,  125. 
(a)  8  Wheat.  391  ;  3  Dall.  6. 


§  357.    Of  the  Court  of  Claims,  and  the  Courts  of  the  District 
of  Columbia. 

The  Court  of  Claims  is  a  court  established  for  the  investi- 
gation and  adjustment  of  claims  against  the  United  States. 
Its  jurisdiction  is  confined  to  cases  based  on  express  con. 
tracts,  or  on  circumstances  from  which  a  promise  to  pay 
money  is  implied,  or  on  statutes  which  provide  for  compen- 
sation from  the  Federal  government  to  parties  by  whom 
injuries  have  been  sustained,  (a)  The  Courts  of  the  District 
of  Columbia  bear  the  same  relation  to  that  portion  of  the 
United  States  as  the  courts  of  individual  States  do  to  their 
respective  territories.  They  exercise  both  common  law  and 
equity  jurisdiction  over  all  cases  of  contract,  tort,  or  crime 
in  which  the  persons  or  property  within  the  District  are  in- 
volved. They  also  exercise  judicial  powers  in  special  cases 
of  a  wider  character  arising  under  Federal  laws  without  refer- 
ence to  the  residence  of  parties  or  the  situs  of  the  property. 

Read  (a)  5  Wall.  419;    11  Wall.  190;    11   Wall.  531;  91  U.  S. 
270;  112  U.  S.  193:  174  U.  S.  373. 


§  358.    Of   the  Concurrent  Jurisdiction  of  Federal    Courts    aud 
State  Courts. 
Except  where  controversies  are  placed  by  the  Federal  Con- 
stitution, or  the  Acts  of  Congress  in  pursuance  of  the  Con- 


328  AMERICAN   JURISPRUDENCE.  §  359 

stitution,  within  the  exclusive  jurisdiction  of  the  Federal 
courts  the  State  courts  have  concurrent  jurisdiction  over 
them,  and  to  whichsoever  jurisdiction  the  controversy  may 
be  first  submitted  it  must  be  there  determined  unless  re- 
moved by  proper  legal  methods  to  the  other,  (a)  The  field  of 
this  concurrent  jurisdiction  is  still  extensive,  although  it  is 
within  the  constitutional  powers  of  Congress  to  restrict  it  or 
even  to  confer  exclusive  jurisdiction  on  the  Federal  courts 
over  all  matters  in  reference  to  which  the  Constitution  be- 
stows judicial  authority  on  the  United  States. 

Read  1  Kent,  Lect.  xviii,  pp.  395-104. 

(a)  85  D  316,  note;  139  U.  S.  240;  6  Wall.  166;  9 
Wall.  415;  11  Wall.  136;  57  D.  65,  note;  67  D. 
89,  note. 

§  359.    Of  the  Common   Law  and  Equity  Powers  of  the  Fed- 
eral Courts. 

All  Federal  courts  possess  both  common  law  and  equity 
powers  commensurate  with  the  subjects-matter  which  are 
within  their  jurisdiction.  In  applying  to  the  controversies 
brought  before  them  the  principles  of  Unwritten  Law  they 
follow,  so  far  as  their  view  of  a  sound  public  policy  will 
permit,  those  rules  and  doctrines  which  are  recognized  in  the 
State  where  the  controversy  arose  and  by  whose  law  it  would 
have  been  determined  had  not  the  matter  been  within  the 
jurisdiction  of  the  Federal  courts,  (a)  In  equity  proceedings 
they  adopt  the  remedies  and  methods  of  the  English  courts 
of  chancery,  irrespective  of  the  departures  therefrom  of  the 
equity  systems  of  the  different  States:  (b)  In  the  trial  of 
causes  at  common  law  they  observe,  when  reasonable  and 
convenient,  the  forms  of  pleadings,  rules  of  evidence,  and 
general  procedure  which  axe  current  in  the  State  where  the 
Federal  court  is  held,  (c) 

Read  (a)  140  U.  S.  106. 

(ft)  3  Wheat.  212  ;  13  How.  518  (533);  21  How.  481;  150 

U.  S.  202. 
(c)  10  Wheat.  1;  10  Wheat.  51;  113  U.  S.  713;  146 

U.  S.  202 ;  12  How.  361 ;  2  Black,  535. 


§§  360,  361         FEDERAL  COURTS.  329 

§  360.  Of  the  Limited  Topical  Jurisdiction  of  the  Federal 
Courts. 
All  Federal  courts  are  courts  of  limited  but  not  inferior 
jurisdiction,  (a)  They  have  no  coguizance  of  controversies 
outside  the  classes  of  cases  enumerated  in  the  Federal  Con- 
stitution. Their  jurisdiction,  therefore,  does  not  extend  to 
probate  matters,  nor  to  questions  concerning  divorce  and 
alimony,  nor  to  any  suit  arising  under  the  penal  laws  of  any 
State,  nor  to  any  prosecution  for  an  offence  against  the  Un- 
written Law,  unless  in  some  manner  the  interpretation  and 
application  of  a  provision  of  the  Federal  Constitution  or  an 
Act  of  Congress  or  a  treaty  enters  into  the  case  as  an  essen- 
tial feature,  necessary  to  its  judicial  determination,  (b)  The 
spheres  of  the  State  Courts  and  the  Federal  Courts  are  and 
were  intended  to  be  entirely  distinct.  Neither  can  trench 
upon  the  jurisdiction  of  the  other,  and  even  where  they  have 
concurrent  jurisdiction  they  are  still  entirely  independent 
courts,  and  after  one  of  them  has  once  obtained  judicial  cog- 
nizance of  any  case  which  might,  had  the  plaintiff  chosen, 
been  brought  before  the  other,  that  other  cannot  iuterfere 
with  the  proceedings  instituted  in  the  first  court  nor  take 
any  action  in  the  controversy  until  the  case  has,  by  a  regular 
process  of  removal,  been  submitted  to  its  jurisdiction,  (c) 

Read  (a)  10  Wheat.  192  (19.0,  200);  91  U.  S.  455. 
\b)  18  How.  470;  21  How.  5S2 ;  7  Cranch,  32. 
(c)  24  How.  450 ;  3  Wall.  334  ;  111  U.  S.  170  ;  112  U.  S. 
294. 


§  361.    Of  the  Territorial  Jurisdiction  of  the  Federal  Courts. 

The  Federal  Constitution  and  the  Acts  of  Congress  also 
define  the  territorial  jurisdiction  of  the  Federal  Courts.  The 
Supreme  Court  and  the  Court  of  Claims  sit  only  at  Washing- 
ton, and  their  territorial  jurisdiction  is  coextensive  with  the 
United  States.  The  Circuit  Courts  of  Appeals,  the  Circuit 
Courts,  and  the  District  Courts  exercise  their  functions  with 
reference  to  more  limited  areas;  the  District  Courts  in  small 
judicial  subdivisions  of  the   United  States,  sometimes  iden- 


330  AMERICAN   JURISPRUDENCE.         §§  362,  363 

tical  in  area  with  a  single  State,  the  Circuit  Courts  of  Appeals 
and  Circuit  Courts  in  groups  of  contiguous  districts,  of  which 
groups  or  circuits  there  are  at  present  nine.  Except  in 
special  classes  of  cases  a  Circuit  Court  or  District  Court  has 
no  original  jurisdiction  unless  the  property  in  question  is 
located  or  the  adverse  party  resides  within  its  territorial 
jurisdiction,  (a) 

Read  (a)  139  U.  S.  240. 


§  362.    Of  the  State  Courts  and  Territorial  Courts. 

Among  the  individual  States  of  the  American  Union  there 
is  no  uniformity  either  as  to  the  number  or  the  organization  of 
their  courts.  In  every  State  there  is  some  supreme  tribunal 
by  which  all  questions  as  to  the  interpretation  of  its  laws,  and 
their  applicability  to  given  states  of  fact,  are  finally  and  con- 
clusively determined.  Under  these  are  one  or  more  inferior 
courts  in  which  all  cases,  civil  or  criminal,  at  law  or  in  equity, 
which  are  not  within  the  exclusive  jurisdiction  of  the  Federal 
courts,  may  be  heard  and  decided.  The  mode  in  which  these 
courts  may  be  created,  their  particular  jurisdiction,  the  appoint- 
ment or  election  of  their  judges,  their  terms  of  office  and  their 
duties,  are  matters  upon  which  each  State  has  legislated  for 
itself,  and  still  from  time  to  time  exercises  its  reorganizing 
powers.  The  courts  of  Territories  not  yet  developed  into 
States  resemble  those  of  individual  States,  except  that  they 
are  established  and  their  officers  are  appointed  by  the  Federal 
authorities,  (a) 

Read  1  Kent,  Lect.  xvii,  pp.  381-386 ;  Cooley,  C  Law,  Ch.  vi, 
pp.  155.  150. 
(a)  9  How.  235;  18  Wall.  648. 


§  363.    Of  Writs   of   Error,   and   the    Removal   of  Causes,  from 
the  State   Courts  to  the  Federal  Courts. 

Although  in  territorial  jurisdiction  and  in  jurisdiction  over 
persons  and  subjects  the  Federal  Courts  and  State  Courts  are 
entirely  independent  of  one  another,  yet  in  reference  to  all 


§  363  FEDERAL   AND    STATE    COURTS.  331 

controversies  to  which  the  judicial  power  of  the  United  States 
extends,  and  as  to  which  the  State  courts  exercise  concurrent 
jurisdiction  only  by  the  concession  or  the  acquiescence  of  the 
Federal  government,  the  State  courts  are  in  such  a  manner 
inferior  to  the  Federal  courts  that  their  action  in  these  con- 
troversies may  be  reviewed  or  superseded  by  the  action  of  the 
courts  of  the  United  States.  Congress  has  provided  two 
methods  for  this  reviewal  or  substitution  of  authority  :  (1) 
By  a  writ  of  error  from  the  decision  of  the  State  court  to  the 
Supreme  Court  of  the  United  States  ;  (2)  By  the  removal  of 
the  case,  after  its  institution  and  before  judgment,  from  the 
State  court  to  the  proper  Federal  court  at  the  suggestion  of 
the  parties.  The  writ  of  error  to  the  Supreme  Court  lies 
where  the  controversy  has  been  submitted  to  the  highest  court 
of  the  State,  and  that  court  has  rendered  a  judgment  which 
necessarily  involves  a  denial  of  the  validity  of  some  treaty, 
statute,  or  official  authority  of  the  United  States,  or  of  some 
title,  right,  privilege,  or  immunity  claimed  under  the  Consti- 
tution, statutes,  treaties,  commissions,  or  concessions  of  the 
United  States,  or  asserts  the  validity  of  some  State  statute  or 
authority  which  is  alleged  to  be  repugnant  to  the  Constitution, 
treaties,  or  statutes  of  the  United  States.  The  removal  of 
the  case  from  the  State  to  the  Federal  court  takes  place  as  a 
matter  of  right  where  the  controversy  arises  under  the  Con- 
stitution, statutes,  or  treaties  of  the  United  States  and  is 
within  the  original  jurisdiction  of  the  Circuit  Courts;  or 
where  the  controversy  is  within  the  original  jurisdiction  of 
the  Circuit  Courts  and  the  defendant  is  not  a  resident  of  the 
State  in  which  the  suit  is  brought;  or  where  none  of  the  de- 
fendants are  citizens  of  the  same  State  as  the  plaintiff ;  or 
where  some  of  the  defendants  are  citizens  of  a  different  State 
from  the  plaintiff,  and  the  controversy  is  severable  as  to  them, 
and  they  affirm  that  a  fair  trial  is  impossible  in  the  State 
court  in  which  the  suit  has  been  commenced  (a);  or  where  the 
controversy  relates  to  the  title  to  land  claimed  by  the  adverse 
parties  under  grants  from  different  States;  or  where  the  suit 
arises  out  of  the  denial  or  violation  of  the  equal  civil  rights 
guaranteed  by  the  Constitution  and  laws  of  the  United  States: 


332  AMERICAN   JURISPRUDENCE.  §  364 

or  where  the  official  acts  of  revenue  officers  of  the  United 
States  and  the  rights  of  persons  claiming  title  under  them  are 
so  attacked  as  to  call  in  question  the  validity  of  the  laws  un- 
der which  they  acted  ;  or  where  an  alien  sues  a  civil  officer  of 
the  United  States  who  at  the  institution  of  the  suit  was  not 
a  resident  of  the  State  in  which  the  suit  was  brought.  The 
facts  which  confer  the  right  to  remove  being  made  apparent 
on  the  face  of  the  papers,  the  State  court  cannot  hinder  the 
removal,  but  must  forthwith  transmit  the  case  to  the  proper 
Federal  court  which  thereafter  exercises  over  it  an  exclusive 
jurisdiction. 

Read  Cooley,  C.  Law,  Ch.  vi,  pp.  139,  145. 

(a)  120  U.  S.  223  ;  127  U.  S.  322  ;  130  U.  S.  230. 


§  364.  Of  the  Future  Development  of  the  Judicial  Systems  of 
the  United  States. 
The  judicial  systems  of  this  country  have  apparently  by  no 
means  reached  their  final  stage  of  development.  Great 
changes  have  taken  place  in  the  organization  and  jurisdiction 
of  both  State  and  Federal  courts  during  the  past  generation, 
and  many  further  changes  must  be  made  before  the  adminis- 
tration of  justice  through  these  judicial  tribunals  reaches  that 
perfection  of  simplicity,  expedition,  economy,  and  certainty 
which  the  political  and  social  interests  of  a  great  commercial 
people  like  our  own  demand.  With  exclusive  jurisdiction 
lodged  in  the  Federal  courts  over  all  matters  to  which  the 
judicial  authority  of  the  United  States  extends,  with  the 
reduction  of  the  laws  and  courts  of  all  the  States  to  one 
homogeneous  system  differing  only  as  to  the  territorial  area 
within  which  their  legislative  and  judicial  powers  were 
exercised,  and  with  an  improved  procedure  framed  upon  true 
business  models,  the  hope  for  such  perfection  might  not  be 
long  unrealized. 


§§  365.  366     fictions  and  presumptions.  333 


CHAPTER   XI. 

OF   FICTIONS   AND   PRESUMPTIONS 

§  365.  Of  the  Meeting  of  Law  and  Fact  in  the  Borderland  of 
Fictions  and  Presumptions. 
The  application  of  law  to  facts  constitutes  government,  or 
the  enforcement  upon  the  subject  of  the  rules  of  conduct  dic- 
tated by  the  reason  and  imposed  by  the  will  of  the  sovereign. 
Government  is  the  transmutation  of  law  into  life,  the  embodi- 
ment of  the  wisdom  and  authority  of  the  State  in  the  acts  and 
forbearances  of  the  citizen.  The  dividing  line  between  law 
and  fact  across  or  through  which  this  transmutation  takes  place, 
however  sharp  and  clear  it  may  be  in  theory,  is  not  capable  in 
practice  of  exact  demarcation.  The  law  as  a  vital  force  flows 
over  into  and  permeates  the  realm  of  fact,  forming  a  border- 
land of  legal  doctrine  in  which  the  elements  of  law  and  fact 
are  so  commingled  that  neither  can  be  contemplated  separately 
from  the  other.  This  borderland  is  the  field  of  fictions  and 
presumptions  in  which  facts  recognized  by  law  may  not  exist, 
and  rules  of  law,  no  longer  pure  commands  or  prohibitions, 
create  the  conditions  to  which  they  themselves  apply. 

§  366.    Of  the  Necessity  for  Fictions  and  Presumptions. 

The  interposition  of  this  middle  ground  between  the  spheres 
of  simple  fact  and  simple  law  has  sometimes  been  regarded  as 
arbitrary  and  absurd.  But  on  reflection  it  will  easily  be  seen 
to  be  both  natural  and  necessary.  There  are  many  states  of 
fact  which  in  their  character  and  extent  are  so  invariable  and 
so  easily  comprehended  as  to  be  within  the  common  knowledge 
of  mankind.  They  need  no  explanation;  they  require  no 
proof.  To  facts  like  these  the  law  annexes  inflexible  and 
universal  rules,  and  to  avoid  foolish  disputation  and  unending 


334  AMERICAN   JURISPRUDENCE.  §  367 

controversies  neither  permits  the  rules  to  be  questioned  nor 
the  facts  to  be  denied.  Other  states  of  fact  occur  which  in  so 
large  a  proportion  of  instances  are  uniform  in  nature  and 
effect  that,  although  subject  to  possible  exceptions,  they 
are  for  the  same  reasons  regarded  as  possessing  their  usual 
characteristics  and  leading  to  their  ordinary  legal  results  until 
their  exceptional  features  have  been  affirmatively  shown.  Still 
other  states  of  fact  exist  which  are  so  difficult  of  compre- 
hension b}r  any  human  lawgiver,  or  in  their  real  character  are 
so  incapable  of  being  brought  within  the  influence  of  practi- 
cable rules,  that  no  rule  at  all  can  be  devised  to  meet  them  un- 
less an  artificial  character  is  imputed  to  them  by  the  law,  in 
view  of  which  a  just  and  reasonable  rule  to  govern  them  can 
be  made.  Thus  is  the  law  compelled,  in  the  last  state  of 
facts  by  necessity  and  in  the  two  former  by  expediency,  to 
take  possession  of  these  portions  of  the  field  of  fact,  and 
either  to  substitute  its  own  conceptions  for  them,  or  to  incor- 
porate itself  with  them  in  rules  which  cannot  be  gainsaid  or 
can  be  departed  from  only  where  the  objector  is  permitted 
and  is  able  to  demonstrate  that  they  are  exceptions  to  the 
general  nature  of  the  class  of  facts  to  which  they  belong. 
These  are  the  assumptions  and  conclusions  of  the  law  to  which 
are  given  the  names  of  Fictions  and  Presumptions.  They  con- 
stitute a  necessary  and  essential  ingredient- in  the  law.  They 
form  the  connecting  medium  between  pure  law  and  pure  fact, 
through  which  the  former  enters  into  and  controls  the  latter 
with  an  efficiency,  economy,  and  certainty  that  in  no  other 
manner  yet  conceived  could  be  attained. 
Read  Best,  Part  i,  Cli.  i.  pp.  1-16. 

SECTION   I. 

OF    LKUAL    FICTIONS. 

§  367.    Of  the  Nature  of  Legal  Fictions. 

A  legal  fiction  is  a  conclusion  of  law  necessitated  by  justice 
though  contrary  to  truth,  which  is  adopted  because  the  actual 
condition  of  the  facts  places  them  beyond  the  reach  of  law, 


§  368  fictions.  335 

or  because  the  law  if  applied  to  their  actual  condition  would 
inevitably  work  a  wrong. ('<)  Thus,  for  example,  no  law  not  pro- 
ceeding from  divine  wisdom  could  fitly  regulate  the  multitudi- 
nous relations,  rights,  and  obligations  of  husbands  and  wives,  if 
they  were  regarded  as  the  independent,  self-directing  person- 
alities which  they  truly  are.  The  law  therefore  grapples  with 
the  problems  which  the  marital  relation  presents  by  assuming 
at  the  outset  what  is  certainly  untrue,  namely,  that  by  the 
act  of  marriage  the  personality  of  the  wife  is  merged  in  that 
of  the  husband,  and  thenceforth  treats  them  as  a  single  though 
fictitious  person  whose  rights  and  duties  are  definable  by  com- 
paratively few  and  simple  rules.  Again,  the  ownership  of 
land  by  several  disconnected  parties  presents  questions  which 
are  practically  insoluble  if  the  land  itself,  as  a  unitary  phys- 
ical object,  is  considered  as  the  subject-matter  in  which  the 
rights  of  the  various  parties  inhere.  By  assuming  that  the 
subject-matter  of  each  individual  ownership  is  not  the  land  but 
an  abstract  estate  or  interest  which,  although  a  unit  in  refer- 
ence to  its  owner,  attaches  to  the  land  collectively  with  all 
the  other  estates  or  interests  in  its  due  legal  order  and  subor- 
dination, the  law  is  able  to  control  and  protect  the  rights  of 
all  the  parties,  however  numerous  and  varied  their  estates  or 
interests  may  be. 

Read  Best,  Part  i.  Ch   ii.  p.  24. 
(a)  33  D.  Gil. 


§  368.  Of  the  Falsehood  and  Possibility  of  the  Facts  Assumed  in 
a  Legal  Fiction. 
The  facts  assumed  in  a  legal  fiction,  although  the  assump- 
tion is  avowedly  untrue,  must  be  in  their  nature  possible. 
That  which  is  always  and  in  every  case  impossible  the  law 
cannot  stultify  itself  by  treating  in  any  case  as  true.  Hence 
if  the  fiction  be  a  physical  fact  it  must  not  be  opposed  to  the 
known  laws  of  nature,  though  it  may  never  yet  have  fallen 
within  the  limits  of  human  experience  ;  if  it  be  an  abstraction, 
a  mere  legal  entity,  it  must  not  be  unreasonable  and  absurd. 


336  AMERICAN   JURISPRUDENCE.  §  369 

Thus  in  the  two  examples  already  given,  where  the  fictions  are 
not  physical  facts,  it  is  not  contrary  to  reason  to  impute  a 
single  personality  —  that  is,  a  unitary  controlling  mind  and 
will  — to  the  husband  and  his  wife,  or  various  separate  estates 
to  the  independent  owners  of  interests  in  land,  although  cor- 
poreally the  wife  and  husband  are  necessarily  distinct  and  the 
assumed  estates  can  exist  only  in  contemplation  of  law.  But 
if  these  fictions  were  extended  to  embrace  the  physical  identity 
of  married  persons,  or  the  subjection  of  estates  to  manual 
dominion,  they  would  assert  impossible  conditions,  and  in 
reference  to  such  conditions  they  would  not  be  allowable  in 
law. 

Read  Best,  Part  i,  Ch.  ii,  p.  26. 


§  369.    Of    the    Subordination  of    Legal    Fictions   to   Essential 
Justice. 

The  purpose  of  a  legal  fiction  is  the  advancement  of  justice. 
It  must,  therefore,  be  innocent  and  beneficial,  preventing  in- 
convenience and  remedying  evils,  and  never  be  permitted  to 
work  an  injury.  In  fabricating  them  the  principles  of  equity 
are  always  to  be  recognized,  and  in  interpreting  and  applying 
them  they  must  not  be  extended  beyond  the  ends  for  which 
they  were  invented.  Within  these  limits  the  facts  assumed 
cannot  be  contradicted  ;  beyond  them  the  fiction  ceases  and 
the  actual  truth  may  be  affirmed,  (a)  Thus  the  fiction  that  a 
husband  and  wife  are  one  person  was  intended  for  the  protec- 
tion of  the  person  and  property  of  the  wife,  as  well  as  for  the 
general  advantage  of  the  husband  and  of  society  at  large.  But 
when  a  wifs  has  property  over  which  the  law  forbids  her  hus- 
band to  exert  control,  and  which  unless  she  has  a  separate 
personality  can  therefore  have  no  owner,  the  fiction  lapses  and 
she  is  treated,  so  far  as  that  property  is  concerned,  as  an  in- 
dependent person  with  the  same  rights  and  privileges  as  if 
she  were  unmarried. 

Read  Best,  Part  i,  Ch.  ii,  p.  25. 
(a)  26  D.  232. 


§§  370, 371  fictions.  337 

§  370.    Of  Fictions  as  Substitutes  for  Legislation. 

A  legal  fiction  serves  in  many  instances  as  a  substitute  for 
legislation.  New  states  of  fact,  to  which  in  their  real  char- 
acter no  existing  rule  of  law  can  be  precisely  applicable,  are 
frequently  assumed  to  be  identical  in  all  their  legally  essential 
features  with  states  of  fact  already  known,  and  therefore  to 
be  subject  to  the  same  rules.  The  letter  of  the  law  in  such  a 
case  of  course  remains  unchanged,  but  in  its  actual  operation 
it  acquires  a  wider  and  perhaps  a  different  meaning.  Such 
instances  occur  most  frequently  in  the  law  of  remedies,  by  the 
extension  of  old  methods  of  procedure  to  new  forms  of  contro- 
versy, as  has  in  recent  times  occurred  in  the  prevention  by  in- 
junction of  many  wrongs  for  which,  considered  in  themselves, 
an  adequate  remedy  exists  at  law  but  which,  by  the  fiction 
that  their  continuous  or  frequent  repetition  will  lead  to  innu- 
merable lawsuits  or  irreparable  damage,  have  been  brought 
within  the  cognizance  of  courts  of  equity.  All  such  extensions 
of  the  law  might,  of  course,  be  as  effectually  made  by  legisla- 
tive action  ;  but  legislative  reform  is  necessarily  slow,  and 
when  the  justice  of  a  case  at  bar  demands  it  the  invention  of  a 
legal  fiction,  which  makes  the  existing  law  sufficient  for  the  case, 
is  a  far  more  speedy  and  convenient  remedy.  The  precedent 
thus  established  becomes  a  guide  for  future  cases  of  a  similar 
character,  and  the  extended  or  amended  rule  enters  into  and 
thereafter  forms  a  part  of  the  Unwritten  Law.  So  constantly 
does  this  occur  that  legal  fictions  have  long  been  recognized 
by  jurists  as  one  of  the  chief  instrumentalities  in  the  develop- 
ment of  law. 


§  371.   Of  the  Classes  of  Legal  Fictions. 

Fictions  are  divisible  according  to  their  form  into  two 
classes  :  Affirmative  and  Negative.  An  affirmative  fiction  as- 
sumes the  existence  of  that  which  does  not  exist.  A  negative 
fiction  assumes  the  non-existence  of  that  which  does  exist. 
That  a  husband  and  wife  are  one  person  is  an  instance  of  the 
former;  that  a  disseisee  who  has  regained  possession  was  never 
out  of  possession  is  an  example  of  the  latter.     Fictions  are 

22 


338  AMERICAN   JURISPRUDENCE.  §  372 

further  divisible  according  to  their  extent  into  Substantive 
and  Relative.  A  substantive  fiction  is  one  in  which  the  entire 
state  of  facts  is  fictitious,  as  that  the  owner  of  land  does  not 
own  the  land,  but  merely  an  estate  therein.  A  relative  fiction 
is  one  in  which  the  substance  of  the  state  of  facts  is  true,  but 
its  assumed  relation  to  other  facts  is  false.  The  relative 
fictions  are  of  four  classes  :  (1)  Those  where  the  act  of  one 
person  is  assumed  to  be  the  act  of  another,  as  in  all  cases  of 
agency,  conspiracy,  and  the  like ;  (2)  Those  where  an  act  done 
by  or  to  a  thing  is  regarded  as  done  by  or  to  another  thing,  as 
when  a  trespass  by  animals  is  treated  as  a  trespass  by  their 
owner,  or  the  acceptance  by  the  buyer  of  a  portion  of  a  lot  of 
goods  is  considered  to  be  the  acceptance  of  the  whole,  or  the 
payment  of  part  of  a  debt  is  taken  as  an  admission  of  con- 
tinued liability  for  the  entire  obligation,  or  the  possession  of 
land  is  transferred  by  livery  of  seisin  ;  (3)  Those  where  an  act 
performed  at  one  place  is  presumed  to  have  been  done  at 
another,  as  where  a  transaction  arising  at  sea  is  assumed  to 
have  happened  on  shore  in  order  to  give  jurisdiction  to  the 
local  courts ;  (4)  Those  where  an  event  occurring  at  one  time 
is  regarded  as  occurring  at  another,  as  when  the  title  of  an  ad- 
ministrator relates  back  to  the  date  of  the  death  of  his  intes- 
tate, or  a  judgment  rendered  at  a  subsequent  term  of  court  is 
imputed  to  the  previous  term  when  the  case  was  tried,  (a) 

Read  Best,  Part  i,  Ch.  ii,  pp.  26-28. 
(a)   15  D.  242,  note. 


§  372.    Of  the  Invention  and  Abandonment  of  Fictions. 

The  number  of  legal  fictions  is  very  great  and  subject  to 
continual  accessions  and  subtractions.  Created  whenever  the 
justice  of  a  case  requires  it,  they  are  abandoned  whenever  the 
same  end  is  attainable  by  more  definite  means  or  when  the  ne- 
cessity in  which  they  originated  has  expired.  Legislation,  by 
providing  a  new  rule,  dispenses  with  the  old  as  well  as  with 
the  fiction  on  which  it  was  based;  and  a  judicial  decision, 
though  led  to  its  results  by  a  pure  fiction  of  law,  often  be- 
comes an  established  rule  which  supersedes  the  fiction  and 


§  373  PRESUMPTIONS.  339 

thenceforth  governs  the  facts  without  its  aid.  The  more  per- 
fectly the  rules  of  written  and  unwritten  law  correspond  with 
the  actual  conditions  of  society  the  less  occasion  have  the 
courts  to  create  assumed  conditions  to  which  the  rules  already 
established  may  apply  ;  and  it  is  thus  conceivable,  though 
scarcely  possible,  that  the  law  may  by  and  by  become  so 
perfect  that  legal  fictions  will  wholly  disappear. 


SECTION   II. 

OF    PRESUMPTIONS. 

§  373.    Of  the  Nature  of  Presumptions. 

A  Presumption  is  a  conclusion  as  to  the  existence  or  non- 
existence of  disputed  facts  derived  from  the  consideration  of 
facts  already  known.  (a)  This  conclusion  may  be  reached  by 
logical  inference  from  the  known  facts,  or  may  be  authori- 
tatively assumed  by  the  law,  without  reference  to  logical 
processes,  whenever  the  facts  from  which  it  is  derived  appear. 
Where  the  conclusion  is  the  result  of  reasoning  from  the 
known  facts  it  is  called  a  presumption  of  fact,  (b)  Where  it 
is  established  by  legal  authority  it  is  called  a  presumption  of 
law.  Presumptions  of  fact  are  in  their  nature  identical  with 
the  inferences  which  men  in  ordinary  life  draw  from  the 
objects  and  events  within  their  knowledge.  Presumptions  of 
law  resemble  fictions  in  that  they  are  pure  legal  assumptions, 
but  differ  from  them  in  that  the  assumed  facts  in  the  fiction 
are  admitted  to  be  false,  while  in  the  legal  presumption  they 
may  be  and  probably  are  true.  These  presumptions  are 
created  or  recognized  by  the  law  from  motives  of  economy 
and  public  policy;  from  economy  when  the  fact  presumed  is 
so  universally  and  uniformly  the  consequence  or  concomitant 
of  the  known  fact  that  the  presence  of  the  latter  makes  the 
former  probable  or  certain,  and  therefore  renders  proof  of  it 
superfluous;  from  public  policy  when  the  presumed  fact  is  so 
essential  to  the  attainment  of  justice  in  all  cases  where  the 
known  facts  exist  that  the  law  is  forced  to  attach  the  former 


340  AMERICAN    JURISPRUDENCE.  §  374 

to  the  latter  as  its  legal  consequence,  independently  of  any- 
actual  or  logical  relation  between  them.  But  whether  pre- 
sumptions of  law  or  presumptions  of  fact,  their  common 
basis  is  a  known  state  of  facts,  for  presumptions  cannot  be 
derived  from  other  presumptions,  thereby  subjecting  the  con- 
clusion to  liability  to  double  error,  but  must  rest  on  the 
impregnable  foundation  of  matters  actually  known. 

Read  (a)  85  D.  327  (330). 

(6)   83  D.  712  (717)  ;  105  U.  S.  614  (617). 


§  374.    Of  the  Distinctions  between  Presumptions  of  Law  and 
Presumptions  of  Fact. 

Presumptions  of  law  and  presumptions  of  fact  are  distin- 
guished from  one  another  by  differences  so  numerous  and 
radical  as  to  leave  them  little  in  common  except  the  cause  of 
their  existence  and  their  name.  (4)  A  presumption  of  law 
is  a  rule  of  law,  established  by  statute  or  judicial  legislation, 
and  applied  by  the  court  directly  to  the  facts  like  any  other 
rule  of  law.  A  presumption  of  fact  is  a  logical  deduction 
which  derives  no  force  from  the  enactments  of  positive  law 
and  is  applied  by  the  judge  or  jury  to  the  facts  according  to 
the  customary  methods  of  reasoning.  (2)  A  presumption  of 
law  does  not  rest  on  probability  nor  require  it,  though  it 
generally  possesses  it.  A  presumption  of  fact  depends  en- 
tirely upon  the  probability  or  certainty  that  if  the  known 
fact  exists  the  disputed  fact  also  exists.  (3)  A  presumption 
of  law  arises  only  from  the  states  of  fact  to  which  the  law 
attaches  it,  and  applies  only  to  conditions  which  are  sub- 
jected to  it  by  the  law,  and  consequently  is  uniform  in  origin 
and  influence  so  long  as  it  exists.  A  presumption  of  fact 
arises  out  of  any  circumstances  from  which  it  is  the  logical 
conclusion,  and  governs  every  fact  which  naturally  lies  within 
the  scope  of  that  deduction.  (4)  A  presumption  of  law  can 
be  changed  at  any  time  by  legislation  or  judicial  decision, 
establishing  a  different  presumption  from  the  same  facts  or 
withdrawing  from  them  all  legal  effect  and  leaving  them  to 
be  the  basis  of  such  presumptions  of  fact  as  the  rules  of  logic 


§  375  •'       PRESUMPTIONS.  341 

may  require.  A  presumption  of  fact,  if  logically  correct, 
is  unchangeable,  the  derivation  of  the  conclusion  from  the 
premises  depending  upon  laws  and  relations  which  no  human 
authority  is  able  to  disturb.  (5)  A  presumption  of  law  is 
imperative  upon  the  court  whenever  the  facts  to  which  it  is 
attached  appear.  ,  A  presumption  of  fact  is  binding  upon  the 
judge  or  jury  only  in  proportion  to  the  certainty  or  proba- 
bility with  which  it  logically  follows  from  the  facts  already 
known,  and  may  be  wholly  disregarded  when  the  probability 
is  weak.  (6)  A  presumption  of  law  ignored  or  contradicted 
by  the  court  gives  to  the  defeated  party  in  the  suit  a  right  to 
a  new  trial.  A  presumption  of  fact  excluded  from  considera- 
tion by  the  judge  or  jury  constitutes  no  ground  for  the  grant 
of  a  new  trial  to  the  defeated  party,  unless  the  court  is  satis- 
fied that  in  discarding  the  presumption  the  obvious  and  neces- 
sary rules  of  logic  have  been  violated. 

Read  Best,  Part  i,  Ch.  ii,  pp.  17,  19,  Ch.  hi,  pp.  31-36. 


§  375.    Of  the  Classes  of  Presumptions  of  Law. 

Presumptions  of  law  are  divided  into  two  classes:  Pre- 
sumptions juris  et  jure  ;  and  Presumptions  juris  tanturn.  A 
presumption  juris  et  jure  is  a  presumption  which  the  law  not 
only  attaches  to  the  facts  but  whose  truth  it  rigidly  main- 
tains, and  which  it  employs  as  a  basis  for  the  establishment 
of  fixed  legal  rights.  Such  a  presumption  is  conclusive  and 
cannot  be  rebutted  by  any  contrary  proof  however  strong. 
Thus  the  presumptions  that  a  final  judgment  by  a  competent 
court  has  done  exact  justice  to  the  parties  and  has  thereby 
extinguished  the  cause  of  controversy,  that  every  person 
knows  the  law,  that  infants  under  seven  years  of  age  are 
incapable  of  criminal  intent,  cannot  be  contradicted  by  evi- 
dence and  are  not  open  to  discussion.  A  presumption  juris 
tanturn  is  a  presumption  which  the  law  attaches  to  the  facts 
and  maintains  as  their  necessary  legal  consequence  until  it 
is  proved  by  sufficient  testimony  that  the  consequence  does 
not  in  fact  exist.  This  is  a  true  presumption  of  law  because 
it  is  made  by  the  law,  and  so  long  as  it  continues  it  possesses 


342  AMERICAN   JURISPRUDENCE.  §  376 

all  the  attributes  of  other  presumptions  of  law.  It  differs 
from  a  presumption  juris  et  jure  in  that  the  law  will  not 
maintain  it  to  the  exclusion  of  evidence  to  the  contrary  or 
after  proof  establishing  its  falsehood  has  been  adduced. 
Instances  of  presumptions  juris  tantum  are :  that  all  human 
beings  are  sane;  that  all  accused  persons  are  innocent;  that 
every  one  intends  the  natural  consequences  of  his  own  acts; 
and  that  all  public  officers  are  presumed  to  have  done  their 
duty.  Though  presumptions  juris  et  jure  are  sometimes  nec- 
essary and  often  advantageous,  yet  the  tendency  in  modern 
law  is  to  make  all  legal  presumptions,  so  far  as  possible,  pre- 
sumptions juris  tantum,  .and  therefore  inoperative  when  con- 
trary to  demonstrable  truth. 

Read  Best,  Part  i,  Ch.  ii,  pp.  20-23,  29,  30  ;  Austin,  Lect.  xxvi, 
pp.  491-494. 


§  376.    Of  the  Classes  of  Presumptions  of  Pact. 

Presumptions  of  fact  are  of  almost  endless  variety  and  may 
be  based  on  any  premises  whether  physical  or  psychical. 
The  field  they  occupy  is  the  same  in  law  as  in  ordinary  life, 
except  that  the  law  refuses  to  notice  those  in  common  use 
whose  influence  is  too  remote  or  whose  basic  facts  could 
easily  be  fabricated.  They  are  sometimes  classified  for  the 
purpose  of  estimating  their  juridical  value  into  (1)  Strong 
presumptions;  (2)  Probable  presumptions;  and  (3)  Slight 
presumptions:  the  strong  existing,  where  the  basic  facts  are 
certain  and  the  logical  deduction  is  clear;  the  probable, 
where  the  premises  are  certain  and  the  inference  is  probably 
correct;  the  slight,  where  the  connection  between  the  known 
facts  and  the  disputed  facts  is  so  remote  that  the  existence 
of  the  former  is  entirely  consistent  with  the  non-existence 
of  the  latter.  Where  the  basic  facts  are  uncertain  no  ] ire- 
sumption  whatever  can  arise.  Slight  presumptions  have  no 
probative  value.  The  probable  are  of  weight  in  proportion 
to  their  probability  and  can  be  rebutted  only  by  showing  that 
their  falsehood  is  as  probable  as  their  truth.     The  strong  are 


§§  377,  378  presumptions.  343 

conclusive  unless  the  contrary  is  established  by  direct  and 
overwhelming  evidence. 

Read  Best,  Part  i,  Ch.  iii,  pp.  36-44. 

§  377.    Of  Mixed  Presumptions. 

There  are  certain  conclusions  of  fact  which  the  law  re- 
quires a  judge  or  jury  to  draw  whenever  the  proper  basic 
facts  are  present,  either  because  the  logical  deduction  is  so 
apparent  and  inevitable  that  only  crass  ignorance  or  wilful 
error  could  avoid  it,  or  because  public  policy  requires  that 
in  connection  with  the  known  facts  other  facts  which  are  not 
their  direct  logical  consequence  should  be  assumed  to  exist. 
These  conclusions  are  called  mixed  presumptions.  They  are 
true  presumptions  of  fact,  not  presumptions  of  law,  but  differ 
from  other  presumptions  of  fact  in  that  the  law  reinforces  by 
its  own  authority  the  evident  logical  deduction,  or  where 
the  deduction  is  not  evident  authoritatively  supplies  its 
place.  Cases  in  which  authority  may  thus  take  the  place  of 
logic  in  presumptions  of  fact  are  chiefly  those  in  which  rights 
long  enjoyed  and  recognized  are  liable  to  be  defeated  on 
account  of  technical  defects  of  title  or  for  want  of  evidence 
which  may  have  been  obliterated  by  lapse  of  time.  In  these 
cases  the  law  may  compel  an  inference  to  be  drawn  in  favor 
of  the  right  from  its  enjoyment,  as  it  does  in  instances  of 
title  by  prescription  or  in  assuming  the  validity  of  ancient 
deeds.  Mixed  presumptions  rank  as  to  their  probative  value 
with  strong  presumptions  of  fact  and  can  be  rebutted  only  by 
direct  and  convincing  evidence. 

Read  Best,  Part  i,  Ch.  iii,  pp.  45-51. 

§  378.    Of  the  Number  and  Variety  of  Presumptions. 

Presumptions  of  law  and  fact  pertain  to  almost  every  aspect 
of  human  affairs  and  are  employed  to  some  extent  in  every 
judicial  investigation.  Any  attempt  to  enumerate  them  would 
be  futile  not  only  on  account  of  their  multitude  but  because 
they  are  subject  to  continual  change  in  number  by  the  addition 
or  withdrawal  of  individual  presumptions  of  law.     Nor  can 


344  AMERICAN   JURISPRUDENCE.  §  879 

they  be  grouped  in  such,  a  manner  as  to  assign  each  presump- 
tion to  its  proper  species  as  a  presumption  juris  et  jure,  a  pre- 
sumption juris  tantum,  a  presumption  of  fact,  or  a  mixed 
presumption,  for  the  reason  that  the  laws  of  our  different 
States  or  the  law  of  the  same  State  at  different  times  may- 
alter  the  legal  status  of  a  presumption  by  removing  it  from 
one  of  these  species  to  another.  To  arrange  the  principal  pre- 
sumptions, whether  of  law  or  fact,  according  to  the  nature  of 
the  basic  facts  out  of  which  they  arise  is,  however,  practicable, 
and  will  afford  the  student  a  clearer  view  of  their  character 
and  variety. 

§  379.    Of  Presumptions  against  Ignorance  and  Wrong. 

Presumptions  against  ignorance  and  wrong  are  based  upon 
the  fact  that  reasonable  and  upright  men,  which  all  citizens 
are  supposed  to  be,  inform  themselves  as  to  their  duties  and 
conscientiously  perforin  them.  From  this  fact  arise  the  fol- 
lowing presumptions :  (1)  That  everyone  knows  such  rules 
of  law  as  it  is  his  legal  duty  to  obey  (a);  (2)  That  all  acts  and 
forbearances  are  lawful ;  (3)  That  every  person  discharges  his 
legal  obligations  ;  (4)  That  no  one  commits  fraud  or  tort  or 
crime;  (5)  That  persons  who  cohabit  are  married;  (6)  That 
all  children  are  legitimate ;  (7)  That  corporations  confine 
their  acts  within  their  powers;  (8)  That  all  persons  adhere  to 
the  customary  religion  of  the  community  in  which  they  live  ; 
(9)  That  every  public  officer  was  rightfully  appointed  ;  (10) 
That  every  official  act  is  properly  performed  (b)\  (11)  That  all 
public  records  are  correct ;  (12)  That  the  deeds,  wills,  and 
other  instruments  made  by  past  generations  —  that  is,  more 
than  thirty  years  old  — were  lawfully  executed;  (13)  That 
every  person  interested  to  know  what  the  public  land  records 
or  court  rolls  contain  does  know  it ;  (14)  That  every  person 
knows  what  he  is  interested  to  know  and  could  find  out  by 
ordinary  inquiry,  (c) 

Read  Best.  Part  ii,  Ch.  i,  ii,  pp.  63-86,  Ch.  viii,  pp.  211-215. 

(a)  55  St.  488,  note. 

(b)  10  D.  232. 

(c)  9  D.  736 ;  38  D.  124 ;  23  D.  36,  note ;  74  D.  169. 


§§  380, 381  presumptions.  345 

§  380     Of  Presumptions  that  Persons  Assert  their  Rights. 

Presumptions  that  persons  assert  their  known  rights  against 
invaders  are  based  upon  the  facts  that  human  reason  and 
instinct  prompt  such  assertion,  that  the  law  can  protect  rights 
only  when  its  aid  is  invoked  by  their  owner,  and  that  the  fail- 
ure to  assert  them  when  the}-  are  invaded  results  practically 
in  their  loss.  These  presumptions  are :  (1)  That  one  possess- 
ing and  using  the  property  of  another  does  so  by  his  per- 
mission; (2)  That  every  beneficial  enjoyment  of  property  is 
coupled  with  a  legal  right ;  (3)  That  every  apparent  title  is  a 
true  title ;  (4)  That  every  long  continued  privilege  in  the  laud 
of  another  must  have  originated  in  a  grant ;  (5)  That  a  high- 
way across  private  laud  which  has  been  for  a  considerable 
period  in  public  use  was  once  dedicated  to  the  public  by  its 
owner;  (6)  That  rights  long  unasserted  are  extinguished. 
Many  of  these  presumptions  occupy  the  same  field  as  those  pro- 
visions of  the  Statute  of  Limitations  which  forbid  the  courts 
to  interfere  on  behalf  of  parties  whose  claims,  however  just  in 
their  inception,  have  become  stale  through  lapse  of  time,  (a) 

Read  Best.  Part  ii,  Ch.  iii,  pp.  87-169. 
(a)  6  Wheat.  481 ;  111  U.  S.  395. 


§  381.    Of    Presumptions    that    the    Course    of    Nature    is    Ob- 
served. 
Presumptions  that  events  happen  according  to  the  ordinary 
course  of  nature   are  based  on  universal   human  experience. 
Such  presumptions  are  :     (1)  That  all  the  phenomena  of  na- 
ture occur  in  their  usual  order  and  method  ;      (2)   That  chil- 
dren are  born  at  the  end  of  the  usual  period  of  gestation  ; 
(3)  That  all  persons  reach  the  normal  term  of  human  life  (a)  : 
■1     That  infants  under  seven  are  mentally  incapable  of  crime  ; 
(5)  That  males  under  fourteen  and  females  under  twelve  can- 
not unite  in  the  duties  of  the   marriage  relation  ;    (6)  That 
persons  intend   the    natural   consequences  of   their  acts   and 
omissions  (b) ;    (7)  That  voluntary  wrong  springs  from,  malice  ; 


346  AMERICAN   JURISPRUDENCE.  §  382 

(8)  That  every  one  accepts  a  proffered  benefit ;  (9)  That  all 
persons  are  sane  ;  (10)  That  when  the  desire  and  the  oppor- 
tunity to  do  an  act  concur  the  act  will  be  done;  (11)  That 
the  silence  or  falsehood  of  one  who  is  accused  of  wronsr 
indicates  guilt ;  (12)  That  the  fabrication  or  suppression  of 
evidence  indicates  guilt ;  (13)  That  flight  or  concealment 
indicates  guilt ;  (14)  That  confessions  of  guilt  and  admissions 
against  interest  are  true. 

Read  Best,  Part  ii,  Ch.  iv,  pp.  170-178,  Ch.  vii,  pp.  203-210, 
Part  iii,  Ch.  i,  ii,  pp.  246-344. 

(a)  58  D.  740. 

(b)  21  Wall.  325  (337,  338). 


§  382.   Of   Presumptions   that   the   General   Usages   of  Society 
are  Observed. 

Presumptions  that  the  current  usages  and  habits  of  society 
are  observed  are  based  on  the  fact  that  the  usages  voluntarily 
adopted  by  society  are  generally  reasonable  and  suitable  to 
their  condition,  and  that  conformity  to  them  is  necessary  for 
those  who  would  participate  in  its  advantages  and  operations. 
These  presumptions  are  of  great  variety,  some  commercial, 
some  domestic,  some  purely  civic.  Of  these  the  following  are 
examples :  (1)  That  the  customs  of  a  trade  are  observed  by 
all  parties  engaged  in  it ;  (2)  That  the  knowledge  of  an 
agent  is  communicated  to  his  principal  (a)  ;  (3)  That  parties 
to  written  contracts  read  and  understand  them  before  they 
execute  them  ;  (4)  That  a  deed  in  the  possession  of  a  grantee 
was  delivered  on  the  day  of  its  date ;  (5)  That  erasures  and 
interlineations  in  a  deed  were  made  before  its  delivery  (b)  ; 
(6)  That  the  holder  of  a  note  or  bill  took  it  before  matur- 
ity (c)  ;  (7)  That  a  bill  or  note  in  the  possession  of  the  maker 
has  been  paid;  (8)  That  a  sealed  instrument  imports  a  con- 
sideration ;  (9)  That  a  letter  or  telegram  properly  forwarded 
reaches  its  destination  (d) ;  (10)  That  all  residents  in  a  State 
are  citizens  ;  (11)  That  identity  of  name  is  identity  of  per- 
son ;   (12)  That  a  person  absent  from  home  for  seven  years, 


§§  383,  384  presumptions.  347 

without  being  heard,  from,  is  dead  (e) ;    (13)  That  public  offb 
cers  transact  their  business  in  the  customary  manner. 

Read  Best,  Part  ii,  Ch.  v,  pp.  179-185  ;  Markby,  §§  281,  290. 
(«)   1 1  Wall.  356. 
(6)   10  Wall.  26. 

(c)  94  U.  S.  753;  95  U.  8.  16. 

(d)  7  R.  536;  53  R.  22. 

(e)  8  D.  658 ;  58  D.  740 ;  92  D.  248. 


§  383.    Of  Presumptions  in  Reference  to  Time. 

Presumptions  as  to  time  originate  partly  in  the  usages  of 
society  and  partly  in  the  construction  given  by  the  courts  to 
the  language  of  statutes  and  other  documents.  The  law  rec- 
ognizes a  year  as  a  calendar  year,  a  month  as  a  calendar 
month,  and  a  day  as  the  ultimate  unit  of  time,  all  more  minute 
subdivisions  being  arbitrary  and  variable.  («)  Hence  it  re- 
fuses to  take  notice  of  fractions  of  a  day  except  in  special 
cases  where  justice  requires  it,  and  presumes  that  an  act  done 
or  to  be  done  on  a  given  day  was  done  or  may  be  done  at  any 
moment  in  the  day  between  midnight  and  midnight,  (i)  In 
computing  time  from  or  to  a  given  date  the  day  of  the  date  is 
presumed  to  have  been  excluded,  (c)  The  law  also  regards 
Sunday  as  a  dies  non  on  which  no  private  contract  can  be  made 
nor  an  avoidable  official  act  be  legally  performed,  (d) 

Read  Black,  Ch.  v,  §§  71-73. 

(«)  7  I).  240,  note  ;  21  D.  492 ;  32  R.  86,  note  ;  46  R. 
406,  note;  139  U.  S.  137  (143-146). 

(b)  26  1).  232,  note  ;  52  D.  156  ;  104  U.  S.  469  ;  147  U.  S. 

640. 

(c)  59  R.  326 ;  50  D.  249. 

(</)  111  U.S.  597;  140  U.S.  118(131):  12  D.  287,  note; 
19  1).  608,  note. 


§  384.    Of  Presumptions  that  Existing  States  of  Fact  Continue. 
Presumptions  that  states  of  fact,  once  existing,  continue  in- 
definitely are  based  on  experience  and  on  the  necessity  for  a  rule 
determining  upon  whom  rests  the  duty  of  proving  that  they 


348  AMERICAN   JURISPRUDENCE.  §  385 

have  or  have  not  changed,  (a)  Among  these  presumptions 
are :  (1)  That  a  person  once  living,  and  whose  natural  term  of 
life  has  not  expired,  is  still  alive  (b) ;  (2)  That  a  domicile  once 
acquired  remains  unchanged ;  (3)  That  a  relation,  marital, 
commercial,  or  official,  once  established,  still  exists;  (4)  That 
debts  once  due  are  still  due :  (5)  That  opinions  once  adopted 
are  still  maintained;  (6)  That  the  known  habits  of  men  and 
animals  still  persist. 

Read  Best,  Part  ii,  Ch.  vi,  pp.  186-202. 

(a)  50  R.  296,  note. 

(b)  5  D.  727. 

§  385.    Of  Presumptions    in   Reference  to    Rights,  Duties,  and 
Liabilities. 

Presumptions  as  to  the  legal  status  and  liabilities  of  persons 
and  property  are  based  on  the  rules  of  law  prevailing  in  the 
State  where  the  presumption  is  raised,  and  there  applied  to 
states  of  fact  similar  to  those  as  to  which  the  presumption 
is  adopted.  Such  are  the  presumptions  :  (1)  That  the  laws  of 
States  of  the  same  origin  and  traditions  are  identical  (a) ;  (2) 
That  the  Common  Law  prevails  in  all  the  States  of  the  Ameri- 
can Union ;  (3)  That  the  bed  of  navigable  tidal  waters  be- 
longs to  the  State  ;  (4)  That  the  boundary  between  private  and 
public  ownership  in  tidal  waters  is  high-water  mark  ;  (5)  That 
the  soil  beneath  unnavigable  streams  belongs  to  the  riparian 
proprietors ;  (6)  That  the  owner  of  land  adjoining  a  highway 
owns  to  the  centre  of  the  highway ;  (7)  That  surface  and  sub- 
jacent owners  of  land  have  mutual  rights  of  support ;  (8)  That 
the  possessor  of  personal  property  is  the  owner  of  it ;  (9) 
That  the  lex  loci  contractus  is  part  of  the  contract;  (10)  That 
a  marriage  valid  where  performed  is  valid  everywhere  ;  (11) 
That  a  wife  committing  felony  or  misdemeanor  in  company 
with  her  husband  acts  under  his  coercion ;  (12)  That  a  com- 
mon carrier  losing  goods  otherwise  than  by  act  of  God  or  the 
public  enemy  was  guilty  of  negligence  ;  (13)  That  innkeepers 
are  at  fault  if  the  property  of  their  guests  is  missing. 

Read  Best,  Part  ii,  Ch.  x,  pp.  235-245. 
(a)  5  R.  540. 


§§  886,  387  presumptions.  349 

§  386.    Of  Conflicting  Presumptions. 

Presumptions  juris  tantut/i  or  presumptions  of  fact  may 
occasionally  conflict  with  one  another  owing  to  the  existence 
in  the  controversy  of  states  of  fact  which  afford  contrary 
presumptions.  This  is,  of  course,  impossible  with  presump- 
tions juris  et  jure  which  are  imperative  rules  of  law  incapable 
of  contradiction.  Where  such  conflict  arises  between  pre- 
sumptions of  equal  intrinsic  weight,  that  presumption  is  main- 
tained which  is  most  consonant  with  justice  and  equity.  Those 
which  impute  validity  to  acts  and  instruments  overcome  those 
which  would  invalidate  them.  Those  which  assert  the  in- 
tegrity and  innocence  of  the  parties  outweigh  those  which 
point  to  their  fraud  or  guilt.  Those  which  are  in  harmony 
with  the  course  of  nature  are  followed  as  against  the  casual 
and  extraordinary.  General  presumptions  give  way  to  special 
ones,  and  where  there  is  no  other  guide,  and  the  justice  of  the 
case  is  equal  under  either  presumption,  that  one  whose  logical 
necessity  or  legal  authority  is  the  strongest  will  prevail. 
Read  Best,  Part  i,  Ch.  iv,  pp.  52-61. 


§  387.  Of  the  Relation  of  Legal  Fictions  and  Presumptions  to 
the  Law  of  Evidence. 
The  doctrine  of  legal  fictions  and  presumptions  which  thus 
performs  so  important  a  function  in  the  administration  of  law, 
is  interwoven  with  every  great  division  of  the  law,  and  is  en- 
countered by  the  student  in  every  sphere  of  his  investigations. 
From  its  relation  to  the  methods  of  judicial  inquiry,  its  effect 
upon  the  burden  of  proof  both  in  criminal  and  civil  cases,  and 
the  partial  or  complete  substitution  of  presumptions  and 
fictions  for  actual  testimony,  it  is,  however,  generally  com- 
prehended under  the  law  of  Evidence,  and  in  treatises  upon 
that  subject  receives  its  fullest  explanation  and  discussion. 

Read  Morey,  p.  411. 


350  AMERICAN   JURISPRUDENCE.  §  388 


CHAPTER  XII. 

OF   THE   DEPARTMENTS  OF   LAW. 

§  388.    Of  the  Practical  Classification  of  Laws. 

The  application  of  the  law  to  practical  affairs  results  in  the 
distribution  of  its  rules  into  classes  somewhat  different  from 
those  into  which  it  logically  divides.  Statutes  and  decisions  are 
evoked  by  special  needs  arising  out  of  current  social  conditions, 
and  thus  the  law  in  force  at  any  given  period  consists  of  those 
commands  and  prohibitions  only  which  are  required  for  the 
immediate  direction  and  protection  of  the  people  of  the  State 
in  the  enjoyment  and  vindication  of  their  political,  personal, 
and  property  rights.  In  one  social  condition  these  rights  as- 
sume certain  forms  and  attach  to  certain  objects,  to  meet 
which  in  their  numerous  details  the  rules  of  law  are  framed. 
At  a  later  period,  and  under  changed  social  conditions,  other 
objects  fall  within  these  rights  and  the  rights  vary  in  form  to 
correspond  with  them,  and  the  law,  following  the  course  of 
nature,  manifests  itself  in  new  rules  adapted  to  the  new  states 
of  affairs.  Thus  in  the  history  of  our  own  law  successive 
social  epochs  have  been  marked  by  the  development  of  suc- 
cessive bodies  of  law,  or  groups  of  rules  pertaining  to  different 
subjects  and  conditions  which  take  their  names  and  general 
character  from  the  conditions  and  the  subjects  under  their 
control,  and  are  known  as  "  branches  "  or  "  departments  "  of 
the  law.  In  each  of  them  the  rules  of  substantive  law  and 
adjective  law,  of  public  law  and  private  law,  of  national  law 
and  international  law,  of  Federal  law  and  State  law,  of  Eng- 
lish law  and  American  law  may  be  commingled.  They  are  the 
corn  and  wheat  and  herbage  emerging  from  the  social  soil  into 
which  those  logical  ingredients  of  the  law  have  entered,  and 
where  uniting  with  its  varying  elements  they  have  produced 


§  389  THE    DEPARTMENTS    OF   LAW.  351 

that  concrete  legal  pabulum  by  which  political  society  is  fed. 
It  is  in  the  forms  resulting  from  this  final  evolution  of  the 
law  that  the  student  is  confronted  with  it  as  a  subject  of  in- 
vestigation when  he  endeavors  to  prepare  himself  to  partici- 
pate in  its  administration,  and  with  their  brief  description  a 
work  on  Jurisprudence  may  appropriately  close. 


§  389.      Of  the  Law  of  Real  Property. 

Until  the  present  century  the  most  important  affairs  of 
the  Anglo-Saxon  races  on  both  sides  of  the  Atlantic  were 
identified  with  land.  The  land  itself  and  interests  in  land 
constituted  not  only  the  wealth  of  the  people  and  the  sum  of 
their  material  resources,  but  gave  its  form  to  their  social  orga- 
nization and  moulded  their  political  institutions.  Its  settled 
modes  of  ownership  and  use,  the  relations  into  which  its  occu- 
pation by  a  tenant  brought  him  with  its  lord,  the  methods  of 
its  transfer  during  the  life  or  at  the  death  of  its  possessor, 
were  among  those  customs  brought  by  the  earliest  Saxon  im- 
migrants to  England,  and  had  been  observed  for  ages  before 
the  laws  of  Alfred  and  of  the  Confessor  gave  them  permanent 
expression.  To  these  customs  Norman  feudalism  added  many 
others  which  Acts  of  Parliament  corrected  or  affirmed,  and 
judgments  of  the  courts  interpreted  and  applied,  until  the  law 
of  landed  property  became  by  far  the  most  complete  and  intri- 
cate of  all  the  legal  systems  which  our  political  history  has 
ever  known.  Meanwhile,  in  response  to  the  demands  of  social 
conditions  which  have  practically  assimilated  to  the  land  other 
objects  not  essentially  connected  with  it,  this  law  has  been  ex- 
tended to  embrace  these  objects  also,  and  it  is  now  no  longer 
possible  to  draw  a  line  of  physical  demarcation  between  those 
which  are  governed  and  those  which  are  not  governed  by  its 
rules.  The  Law  of  Real  Property  has  thus  always  been  and 
still  is,  though  in  a  less  .comparative  degree,  the  bed-rock  of 
our  law,  the  earliest  and  most  stable  as  well  as  the  most  com- 
prehensive of  all  the  groups  of  rules  into  which  the  law  has 
been  divided  through  its  practical  application  to  concrete  affairs. 


352  AMERICAN   JURISPRUDENCE.  §  390 

Naturally  it  engrossed  for  many  centuries  a  major  part  of  the 
attention  of  our  courts  and  jurists,  whose  writings  and  de- 
cisions form  to-day  a  large  proportion  of  the  literature  of  our 
law,  while  its  subordinate  branches  of  Conveyancing  and  Wills 
have  furnished  generations  of  practitioners  with  responsible 
and  lucrative  employment. 


§  390.      Of  the  Law  of  Civil  Actions. 

Dating  back  to  the  same  prehistoric  period  of  Teutonic  cus- 
tom the  crude  beginnings  of  our  present  method  of  judicially 
applying  remedies  to  private  wrongs  appear ;  as  early  as  King 
Alfred's  time,  at  least,  developing  into  an  established  system 
of  superior  and  inferior  courts,  with  well-defined  original  and 
appellate  jurisdiction,  with  orderly  proceedings  and  all  the 
essential  features  of  our  modern  courts  of  common  law. 
Under  the  social  conditions  which  prevailed  in  that  and  many 
subsequent  generations  the  principal  controversies  which  re- 
quired judicial  settlement  were  those  concerning  land,  or  those 
arising  out  of  injuries  by  violence  or  the  breach  of  an  express 
agreement  for  which  an  adequate  compensation  in  money  could 
be  made.  The  importance  of  the  interests  at  stake  in  landed 
controversies,  and  the  difficulties  encountered  in  the  effort  to 
comprehend,  define,  and  adjudicate  upon  the  questions  which 
those  controversies  involved,  necessitated  methods  of  proced- 
ure which  under  the  Norman  kings  and  their  justiciars 
became  exact  and  technical  in  the  last  degree,  and  in  which 
any  error,  however  trivial,  imperilled  the  judgment  that  the 
party  making  the  mistake  might  afterwards  obtain.  Under 
these  circumstances  the  Law  of  Civil  Actions  stood  side  by 
side  in  consequence  and  intricacy  with  the  law  of  real  prop- 
erty and  shared  with  it  the  studies  and  the  expositions  of  the 
judges  and  law-writers  of  that  day.  Most  of  the  treatises 
before  the  Commentaries  of  Blackstone  are  either  wholly  occu- 
pied with  one  of  these  great  subjects  or  are  divided  almost 
equally  between  them,  while  those  chapters  of  his  own  incom- 
parable work  which  display  the  profoundest  learning  and  the 


§  391  THE   DEPARTMENTS   OF    LAW.  353 

highest  powers  of  explanation  are  those  devoted  to  the  rules 
governing  real  property  and  the  remedies  for  private  wrongs. 
The  simplifying  processes  of  later  days,  intended  though  they 
are  to  make  this  subject  both  in  theory  and  practice  less  ob- 
scure, do  not  and  never  can  emancipate  it  from  those  difficul- 
ties which  render  the  efforts  of  the  student  to  explore  it  labo- 
rious and  irksome,  and  in  its  practical  administration  demand 
of  the  lawyer  and  the  judge  the  keenest  perception  and  the 
most  cautious  application  of  its  rules. 


§  391.      Of  the  Laws  of  Practice,  Pleading,  and  Evidence. 

Embraced  in  the  law  of  civil  actions  are  three  subordinate 
groups  of  rules  known  as  the  Law  of  Practice,  the  Law  of 
Pleading,  and  the  Law  of  Evidence.  Apart  from  these  the 
law  of  civil  actions  is  devoted  mainly  to  the  definition  of 
actionable  wrongs,  with  the  forms  of  action  and  the  modes 
of  compensation  provided  for  them  by  the  law.  The  Law  of 
Practice  includes  the  rules  by  which  the  courts  and  their  vari- 
ous officers  are  guided  in  the  conduct  of  judicial  business  from 
the  inception  of  an  action  until  the  final  satisfaction  of  the 
judgment  and  its  entry  on  the  records  of  the  court.  This 
group  of  rules  is  of  the  highest  practical  importance.  Accord- 
ing to  an  ancient  maxim  "  the  practice  of  the  courts  is  the  law 
of  the  courts,"  and  it  is  evident  that  the  ultimate  result  of 
every  legal  controversy  must  depend  to  a  great  extent  upon 
the  justice  and  the  wisdom  of  the  rules  by  which  the  court  is 
governed  iu  conducting  its  investigations  and  in  forming  its 
conclusions.  These  rules  run  out  into  an  almost  infinite  de- 
tail, and  it  is  by  his  thorough  knowledge  of  them  and  ability 
to  follow  them,  and  his  inflexible  enforcement  of  their  observ- 
ance upon  his  antagonists,  that  the  skilfulness  of  a  practitioner 
is  measured.  The  Law  of  Practice  is  often  called  "the  law  of 
civil  procedure,"  and  sometimes,  especially  in  England,  "the 
law  of  nisi pritts"  after  ;i  common  appellation  of  the  court-  by 
which  its  rules  were  generally  prescribed.  Tin'  Law  of  Plead- 
ing is  the  group  of  rules  by  which  the  mutual  written  alterca- 


354  AMERICAN    JURISPRUDENCE.  §  392 

tions  of  the  parties  to  an  action,  whereby  they  make  known 
to  the  court  and  one  another  their  respective  claims,  are  so 
regulated  that  eventually  they  terminate  in  one  or  more  spe- 
cific issues,  each  containing  the  affirmation  and  denial  of  some 
single  proposition  material  to  the  decision  of  the  cause,  and 
therefore  capable  of  a  definite  endorsement  or  repudiation  by 
a  judge  or  jury.  These  rules  prescribe  not  only  the  substance 
which  these  mutual  altercations  must  contain,  but  the  modes 
of  its  arrangement  and  the  forms  of  its  expression,  in  order 
that  the  necessary  completeness,  accuracy,  and  brevity  of  each 
may  be  secured.  The  Law  of  Evidence  governs  the  various 
methods  by  which  the  truth  of  the  allegations  contained  in  the 
pleadings  of  the  parties  is  investigated,  and  determines  the 
competence  and  credibility  of  witnesses,  the  probative  value  of 
the  different  species  of  written  and  objective  testimony,  and 
the  conclusiveness  or  prima  facie  weight  of  fictions  and 
presumptions. 


§  392.      Of  the  Law  of  Crimes. 

The  Law  of  Crimes  is  that  group  of  rules  which  defines  and 
prohibits  public  wrongs  and  prescribes  the  methods  of  their 
prosecution  and  punishment.  As  all  public  wrongs  are  of- 
fences against  the  State,  or  as  it  would  anciently  have  been 
expressed  "  against  the  Crown,"  the  Law  of  Crimes  was  long 
known  in  England  as  "  Crown  Law,"  and  the  treatises  con- 
cerning it  were  entitled  "  Of  Fleas  of  the  Crown."  This  branch 
of  law  is  also  of  extreme  antiquity.  In  primitive  conditions 
of  society  few  offences  against  the  community  at  large  are 
possible,  while  injuries  to  private  persons  unless  of  the  most 
atrocious  character  are  rarely  noticed  by  the  State.  But  as 
society  becomes  more  complex,  especially  as  the  prerogatives 
of  sovereignty  are  enumeratively  defined  and  concentrated 
in  a  single  individual,  acts  and  omissions  which  invade 
his  royal  rights  increase  in  variety  and  frequency,  and  pri- 
vate wrongs  which  find  no  adequate  redress  in  civil  actions, 
yet  in  the  improving  moral  judgment  of  the  community  de- 


§  392  THE   DEPARTMENTS  OF   LAW.  355 

mand  at  least  the  punishment  of  the  offender  by  the  strong 
arm  of  the  State,  are  recognized  as  indirect  violations  of  the 
sovereign's  rights  and  proper  subjects  of  his  penal  laws. 
More  perhaps  than  any  other  branch  of  law  the  Law  of  Grimes 
reflects  the  current  sentiment  of  the  people  of  the  State,  and 
for  this  reason  its  prohibitive  provisions  change  and  fluctuate 
with  every  passing  wave  of  popular  convictions.  For  the 
same  reason  also  the  substantive  Law  of  Crimes  is  principally 
of  statutory  origin  ;  but  few  crimes  being  of  such  a  character  as 
to  attack  fundamental  rights  in  every  stage  and  condition  of 
society  and  therefore  capable  of  becoming  subjects  of  the  cus- 
tomary law.  Such  has  been  the  history  of  our  Criminal  Law, 
from  the  age  when  the  "  blood-wite"  exacted  by  the  public  from 
the  slayer  in  a  case  of  voluntary  homicide  formed  almost  the 
only  instance  of  punishment  for  crime  down  through  the  periods 
of  multitudinous  forms  of  treason,  of  numerous  offences  against 
the  established  religion,  of  forest  laws  and  trade  laws,  until  our 
own  in  which  crimes  against  the  State  itself  are  few  while 
nearly  every  private  injury  from  which  the  citizen  can  suffer, 
either  in  person,  property,  or  reputation,  is  prosecuted  and 
punished  by  the  State.  But  the  adjective  law  of  Crimes, 
called  the  Law  of  Criminal  Procedure,  has  not  shared  in  these 
mutations.  Fashioned  by  custom  on  the  same  general  plan  as 
civil  actions,  its  rules  of  practice,  pleading,  and  evidence  have 
gradually  but  steadily  developed  from  the  rude  trial  before 
the  village  freemen  presided  over  by  the  headman  of  the  com- 
munity, with  the  injured  party  or  his  family  for  prosecutor  and 
the  accused  backed  by  his  blood-relations  as  his  own  defender, 
into  the  present  orderly,  complete,  and  usually  successful 
method  of  investigating  and  determining  the  guilt  of  persons 
charged  with  crime.  The  Law  of  Criminal  Procedure  is  thus 
the  stable  and  persistent  portion  of  our  Law  of  Crimes,  and 
this  explains  the  fact  that,  taking  all  the  treatises  upon  the 
Law  of  Crimes  together,  so  large  a  proportion  of  their  contents 
is  devoted  to  the  subject  of  Procedure,  and  so  incomplete  the 
information  which  they  give  concerning  substantive  offences, 
compelling  the  student  for  his  knowledge  of  the  public  wrongs 
which  the  State  in  its  own  name  will    prosecute   and  punish 


356  AMERICAN   JURISPRUDENCE.  §  393 

to  have  recourse  to  his  own  local  statutes,  interpreting  their 
language  by  the  definitions  of  the  Unwritten  Law  and  the  de- 
cisions of  the  courts. 


§  393.      Of  the  Law  of  Torts. 

The  Law  of  Torts  is  that  group  of  rules  which  determines 
the  nature  of  those  private  wrongs,  other  than  breaches  of 
contract,  for  which  the  courts  in  civil  actions  will  afford  redress. 
Its  history  commences  with  that  of  society  itself,  when  in- 
jured parties  in  obedience  to  a  natural  instinct  made  personal 
reprisal  on  the  violators  of  their  rights  by  seizing  property  as 
compensation  or  inflicting  a  commensurate  loss.  The  inter- 
ference of  the  sovereign  power  with  this  mode  of  redress,  at 
first  to  regulate  it  in  the  interest  of  public  peace  and  order, 
later  to ,  act  through  its  official  agents  on  behalf  of  the  com- 
plainant, and  finally  to  take  entire  charge  of  the  controversy 
and  decide  it  and  enforce  against  both  parties  its  decrees,  were 
the  steps  by  which  in  the  course  of  ages  compulsory  redress 
for  private  wrongs,  except  in  a  few  instances  of  great  emer- 
gency, was  taken  altogether  out  of  the  hands  of  private  per- 
sons and  administered  entirely  by  the  courts.  Obviously,  this 
interference  by  the  State  in  private  controversies  could  and 
would  at  first  occur  only  where  the  injurious  act  was  evident 
and  its  consequences  grave,  and  hence  the  field  of  actionable 
wrongs  was  limited  to  those  in  which  the  right  of  the  injured 
party  was  apparent  and  its  invasion  by  the  wrongful  act  of 
the  defendant  could  be  easily  established.  Wrongs  committed 
by  violence  against  person  and  property  were  of  this  charac- 
ter; acts  and  omissions  producing  loss,  not  as  their  immediate 
result  but  through  new  causes  which  they  set  in  operation, 
were  not;  and  of  the  latter  the  courts  for  a  long  period  as- 
sumed no  jurisdiction.  But  when  the  statute  of  A.  D.  1285 
compelled  the  courts  to  notice  and  adjust  the  controversies 
growing  out  of  consequential  injuries,  the  number  of  these 
actionable  wrongs  was  vastly  multiplied  and  the  Law  of  Torts 
expanded  to  take  in  slander  and  libel  and  malicious  prosecu- 


§  394  THE   DEPARTMENTS    OF   LAW.  357 

tion,  all  wrongful  usurpations  of  dominion  over  property,  and 
every  form  and  degree  of  negligence  liy  which  a  legal  damage 
to  another  party  can  be  caused.  The  scope  of  the  Law  of 
Torts  has  thus  been  determined  by  the  law  of  civil  actions, 
and  still  enlarges  or  contracts  with  the  limits  to  which  for  the 
time  being  the  State  confines  the  jurisdiction  of  its  courts. 


§  394.      Of  the  Law  of  Domestic  Relations. 

The  Law  of  Domestic  Relations  is  that  group  of  rules  which 
defines  the  rights  and  obligations  of  the  parties  to  the  rela- 
tions of  husband  and  wife,  parent  and  child,  guardian  and 
ward,  and  master  and  servant.  In  the  period  when  the  fam- 
ily was  the  ultimate  unit  of  society  and  the  housefather  exer- 
cised almost  supreme  control  over  his  wife  and  children,  wards 
and  servants,  being  himself  responsible  to  the  community  for 
their  misconduct  and  support,  the  sphere  of  these  rules  was 
confined  almost  exclusively  to  the  privileges  and  duties  which 
the  headship  of  his  family  devolved  upon  the  father  in  refer- 
ence to  third  parties.  The  rights  of  the  husband  to  the  soci- 
ety of  his  wife,  of  the  father  to  the  presence  and  services  of 
his  children,  of  the  guardian  to  the  custody  of  his  ward,  of  the 
master  to  the  labor  of  his  servant,  as  against  all  abductors,  as- 
sailants, and  seducers,  and  the  corresponding  obligation  to 
compensate  all  persons  who  had  suffered  actionable  wrongs 
through  his  failure  to  maintain  and  properly  control  them, 
constituted  the  greater  portion  of  this  law  until  within  the 
past  three  generations.  Social  development  has,  however, 
given  to  this  branch  of  the  law,  as  to  most  others,  a  wider 
field  and  more  numerous  details,  and  the  internal  rights  and 
duties  of  the  parties  to  the  relation  toward  one  another  have 
thus  at  last  obtained  some  recognition  from  the  law.  The 
appointment  of  guardians  by  the  courts  or  by  the  wills  of  de- 
ceased persons  under  the  supervision  of  the  courts,  the  estab- 
lishment of  the  relation  of  master  and  servant  by  specific 
contracts,  the  emancipation  of  the  personality  of  the  wife 
from  its   entire    submergence  in  thai    of    Hie    husband,  have 


358  AMERICAN   JURISPRUDENCE.  §§395,396 

been  among  the  causes  of  this  change,  and  account  for  many 
of  the  differences  which  appear  between  the  statements  of  the 
law  contained  in  the  earlier  treatises  and  those  of  the  present 
day. 


§  395.      Of  the  Law  of  Personal  Property. 

The  Law  of  Personal  Property  is  a  title  applied  to  a  selec- 
tion from  the  numerous  groups  of  rules  relating  to  all  prop- 
erty that  is  not  real.  Personal  property  is  of  such  great  variety, 
and  is  so  involved  in  all  the  affairs  of  life,  that  any  statement 
of  all  the  rules  which  govern  it  would  necessarily  include  the 
law  of  contracts,  the  law  of  crimes,  the  law  of  civil  actions, 
the  law  of  torts,  and  every  other  branch  of  law  except  the 
single  one  pertaining  to  real  property.  But  a  discussion  of 
the  essential  characteristics  of  personal  property,  an  enumera- 
tion and  description  of  the  various  classes  into  which  it  is 
divided  and  of  the  different  species  of  objects  comprised 
within  each  class,  a  general  outline  of  the  methods  of  its  crea- 
tion, use  and  transfer  with  the  rules  which  govern  them,  and 
a  definition  of  the  wrongs  to  which  it  is  susceptible  and  the 
modes  in  which  such  wrongs  may  be  redressed,  are  practicable 
apart  from  other  details  of  the  subject,  and  of  these  the 
treatises  upon  the  Law  of  Personal  Property  are  usually 
composed.  To  this  branch  of  the  law  also  belong  all  such 
subordinate  departments  as  the  Law  of  Shipping,  or  the  Law 
of  Patents,  Copyrights,  and  Trademarks,  with  the  exception  of 
their  contract  aspects  which  fall  more  properly  under  a  differ- 
ent division  of  the  law. 


§  396.      Of  the  Law  of  Estates. 

The  Law  of  Estates  is  a  name  given  to  a  group  of  rules 
governing  the  administration  of  property  under  the  supervi- 
sion of  the  courts  by  a  person  not  its  owner  "in  the  interest  of 
other  persons  who  are  lawfully  entitled  to  its  benefits.  It  em- 
braces many  subdivisions,  such  as  the  law  of  guardians  of 
estates  whether  of  infants  or  incapables,  the  law  of  decedents' 


§  397  THE   DEPARTMENTS    OF   LAW.  359 

estates  whether  testate  or  intestate,  the  law  of  trusts  whether 
private  or  charitable,  the  law  of  insolvents'  estates,  and  the 
law  of  receivers.  In  all  these  cases,  while  the  rights  of  the 
beneficiaries  are  determined  by  the  laws  of  real  or  personal 
property,  or  the  laws  of  contracts,  equity,  or  corporations,  as 
the  case  may  be,  the  general  duties  of  the  persons  charged 
with  the  administration  of  the  property  are  practically  the 
same,  consisting  in  the  collection,  custody,  sale,  or  investment 
of  the  assets  and  the  payment  of  the  income  or  the  principal 
to  the  parties  who  may  be  entitled  to  receive  it.  In  each  of 
these  duties  the  details  vary  with  the  character  of  the  estate 
and  the  subordinate  divisions  of  the  law  under  which  it  is  to 
be  administered,  as  well  as  with  the  tribunals  by  whom  the  ad- 
ministrators are  appointed  or  confirmed,  under  whose  direction 
they  perform  their  official  duties,  to  whom  their  accounts  are 
rendered,  and  on  whose  records  a  recital  of  their  action  is  pre- 
served. This  branch  of  our  law  is  not  yet  adequately  repre- 
sented in  our  legal  literature  as  a  distinct  department,  its 
rules  being  still  scattered  through  the  treatises  on  real  prop- 
erty, wills,  domestic  relations,  personal  property,  equity,  cor- 
porations, and  contracts,  though  long  since  meriting  a  separate 
investigation  and  discussion. 


§  397.      Of  the  Law  of  Contracts. 

The  Law  of  Contracts  is  a  body  of  law  composed  of  many 
subordinate  groups  of  rules,  and  in  its  vast  scope  and  almost 
supreme  importance  is  of  very  recent  origin.  Agreements  of 
various  kinds  between  one  person  and  another  have,  of  course, 
been  frequent  ever  since  society  has  itself  existed.  But  in 
our  legal  history  the  \&\v  concerning  them  assumed  no  great 
proportions  until  within  the  past  three  bundled  years.  Under 
the  feudal  system,  whether  of  the  Saxon  or  the  Xorman  period, 
contracts  concerning  land  were  rare,  were  confined  mainly  to  the 
cities,  and  when  existing  were  enforced  rather  by  forfeitures 
between  the  parties  than  by  decisions  of  the  courts.  Personal 
property   consisted    principally  of   cattle,  agricultural  imple- 


360  AMERICAN   JURISPRUDENCE.  §  398 

merits,  wearing  apparel,  weapons  of  war  or  of  the  chase,  and 
household  furniture,  except  for  the  commodities  involved  in 
trade,  contracts  concerning  which  followed  the  special  cus- 
toms of  the  merchants  and  when  disputed  were  settled  in  their 
local  guilds.  Thus  the  law  of  contracts  remained  for  many- 
ages  in  a  comparatively  inferior  condition,  and  received  slight 
attention  from  the  English  jurists.  But  when  the  discoveries 
in  the  East  and  West  opened  up  new  worlds  to  British  naviga- 
tors with  the  consequent  extension  of  commerce  and  increase 
of  trade,  when  the  customs  of  merchants  began  to  be  recog- 
nized and  adopted  by  the  courts  as  part  of  the  common  law, 
when  the  awakening  of  inventive  genius  gave  a  resistless  im- 
pulse to  the  development  of  manufactures  and  the  creation  of 
private  business  corporations,  when  contract  relations  were 
spontaneously  substituted  for  all  others  as  far  as  possible  in 
church  and  State,  the  Law  of  Contracts  sprang  into  great  im- 
portance and  now  overshadows  all  the  other  branches  of  the 
law.  Logically  as  well  as  practically  this  law  divides  into 
two  lesser  groups  :  (1)  The  Law  of  Contracts  in  General,  com- 
prising all  the  rules  defining  the  nature,  essential  elements, 
and  legal  consequences  of  a  contract  as  such ;  (2)  The  Laws 
of  Particular  Contracts,  each  of  which  differs  from  the  others 
according  to  the  subject-matter  to  which  it  relates.  This 
second  minor  group  includes  the  law  of  Sales,  the  law  of  Bail- 
ments, the  law  of  Agency,  the  law  of  Partnership,  the  law  of 
Insurance,  the  law  of  Bills  and  Promissory  Notes,  and  the  law 
of  Guaranty  and  Suretyship. 


§  398.     Of  the  Law  of  Corporations. 

The  Law  of  Corporations  is  the  group  of  rules  by  which  the 
organization  of  corporate  bodies  and  the  management  of  cor- 
porate affairs,  both  public  and  private,  are  controlled.  Elee- 
mosynary corporations  have  long  been  known  to  our  law,  but 
public  corporations  and  private  business  corporations  with  the 
laws  which  regulate  them  are  almost  entirely  the  product  of 
the  past  three  centuries.     In  our  own  age  these  artificial  per- 


§  399  THE   DEPARTMENTS    OF   LAW.  361 

sons  have  been  multiplied  beyond  all  computation.  The  local 
government  of  nearly  every  great  centre  of  population  has 
been  confided  to  their  charge,  while  the  property  interest 
which  they  represent  is  often  stated  to  outvalue  all  other 
property  within  the  jurisdiction  of  our  laws.  That  in  elaborat- 
ing the  rules  directing  these  momentous  enterprises  the  wis- 
dom and  sagacity  of  the  great  lawyers  of  the  present  day  find 
constant  occupation,  and  that  their  labors  have  produced  and 
are  still  steadily  improving  the  branch  of  the  law  to  which 
those  rules  belong,  would  alone  be  sufficient,  were  all  other 
causes  wanting,  to  give  the  Law  of  Corporations  one  of  the 
highest  and  most  prominent  positions  among  the  practical  di- 
visions of  our  modern  law. 


§  399.      Of  the  Law  of  Equity. 

The  Law  of  Equity,  being  a  law  of  remedies  for  private 
wrongs,  is  essentially  a  subdivision  of  the  law  of  civil  actions, 
and  might  logically  be  treated  in  connection  with  the  rules 
which  govern  suits  at  common  law.  But  as  it  had  a  separate 
origin,  a  separate  history,  a  separate  literature,  and  generally 
has  been  administered  by  separate  tribunals,  it  has  acquired  a 
place  of  its  own  in  our  legal  system  from  which  it  is  not 
likely,  in  any  proximate  future,  to  be  dislodged.  Moreover, 
by  the  application  of  its  remedies  it  has  brought  into  view  so 
many  new  aspects  of  existing  legal  rights,  which  courts  of 
common  law  because  they  could  not  enforce  them  were  accus- 
tomed to  ignore,  as  to  have  added  largely  to  the  rules  which 
enter  into  our  substantive  law.  It  is  the  province  of  Equity 
Jurisprudence,  as  this  branch  of  the  law  is  sometimes  called, 
to  define  these  new  aspects  of  legal  rights  with  their  corre- 
sponding duties,  to  describe  the  injuries  to  which  they  are 
liable,  and  to  point  out  the  relief,  preventive  or  remedial, 
which  the  courts  of  equity  can  furnish  and  the  procedure  by 
which  such  relief  can  be  obtained.  The  Law  of  Equity  Plead- 
ing and  Practice  comprises  the  rules  which  govern  the  parties 
in  seeking  and  the  court  in  awarding  the  appropriate  redress. 


362  AMERICAN   JURISPRUDENCE.  §§400,401 

§  400.      Of  the  Law  of  Admiralty. 

The  Law  of  Admiralty  is,  like  the  law  of  equity,  a  branch 
of  law  both  substantive  and  adjective,  defining  rights,  describ- 
ing wrongs,  applying  remedies.  Although  it  shares  one  por- 
tion of  its  field  with  the  law  of  torts,  another  with  the  law  of 
contracts,  and  still  another  with  the  law  of  civil  actions,  that 
residue  which  is  peculiarly  its  own  embraces  many  of  the  most 
important  rules  which  govern  commerce  on  the  sea.  Among 
these  are  the  laws  which  regulate  those  reciprocal  relations 
between  the  owner,  master,  crew,  and  passengers  arising  from 
the  nature  of  marine  transportation ;  the  doctrine  of  maritime 
liens  in  all  their  various  phases;  and  that  procedures  rem 
against  the  vessel  and  her  cargo  which  alone  renders  the  en- 
forcement of  commercial  obligations  possible.  These  features 
of  the  Law  of  Admiralty,  together  with  its  international  au- 
thority, must  always  make  it  a  separate  as  well  as  indispen- 
sable department  of  our  law. 


§  401.      Of  Constitutional  Law. 

Constitutional  Law  as  a  distinct  group  of  rules  defining  the 
nature  of  the  State,  and  asserting  the  mutual  obligations  of 
itself  and  its  own  citizens,  occupies  the  same  position  in  the 
practical  as  in  the  logical  divisions  of  the  law.  But  as  the 
final  test  of  the  validity  of  both  the  Written  and  Unwritten 
Laws,  it  enters  into  every  other  group  of  rules  to  be  their  con- 
firmation if  they  agree  with  its  provisions,  their  destruction  if 
they  exceed  or  contradict  it ;  and  thus  it  permeates  the  entire 
body  of  the  law  like  the  vital  force  which  animates  the 
sound,  heals  the  diseased,  and  purges  away  the  dead  portions 
of  the  human  frame.  In  this  aspect  Constitutional  Law 
becomes  a  subject  of  investigation  whenever  any  portion  of 
the  law  is  studied,  and  every  decision  which  sustains  a  contro- 
verted rule  adds  another  to  its  numberless  precedents  and  ex- 
tends still  more  widely  its  conservative  authority.  As  a 
distinct  group  of  rules  it  has  been  the  subject  of  constant  re- 
search and  exposition  ever  since   the  independence  of   this 


§  402  THE   DEPARTMENTS    OF    LAW.  363 

country  was  assured.  Treatises  of  the  highest  merit  have 
discussed  the  various  clauses  of  the  Federal  Constitution  ;  to 
its  interpretation  the  most  elaborate  and  profound  decisions  of 
our  greatest  judges  have  been  devoted;  and  still  the  wealth  of 
legal  doctrine  which  it  holds  is  not  exhausted,  nor  does  a  con- 
stitutional question,  however  difficult  or  novel,  go  without 
reply.  The  Constitutions  of  the  several  States  have  been  sub- 
jected to  a  similar  scrutiny  though  in  a  less  degree,  each  State 
accumulating  for  itself  by  multiplied  decisions  of  the  courts  a 
local  Constitutional  Law.  In  this  field  of  research  there  is 
room  for  even  more  extended  efforts,  particularly  in  the  com- 
parative analysis  of  the  State  Constitutions  and  their  reduc- 
tion to  a  body  of  homogeneous  Constitutional  Law. 


§  402.      Of  International  Law. 

International  Law,  like  Constitutional  Law,  is  both  a  sepa- 
rate division  of  the  law,  and  a  legal  energy  pervading  many 
other  departments  of  the  law.  In  its  former  character  it  is 
logically  and  practically  the  same;  in  its  latter  character,  es- 
pecially through  treaties  and  the  laws  of  war  and  the  restric- 
tions placed  upon  belligerents  and  neutrals,  it  affects  the 
personal  liberty,  the  commercial  privileges,  the  property  rights 
and  contract  obligations  of  the  private  citizen.  As  intercourse 
between  the  subjects  of  the  family  of  nations  grows  more  in- 
timate and  varied,  and  their  relationships  by  marriage  or  by 
community  of  interests  become  so  close  that  scarcely  any  dif- 
ference except  that  of  political  allegiance  subsists  between 
them,  the  influence  of  International  Law  upon  their  happiness 
and  welfare  must  increase  until  it  may  perhaps  become  a  fac- 
tor in  the  private  lives  of  individuals  only  less  potent  and 
universal  than  Constitutional  Law  itself.  Hence  the  doctrine 
that  International  Law  forms  a  part  of  every  National  law  is 
no  mere  abstract  proposition  but  a  practical  truth  of  the  grav- 
est import,  imposing  on  every  lawyer,  who  assumes  to  under- 
stand and  to  defend  and  vindicate  the  rights  of  private 
citizens,  the  duty  of  acquiring  a  knowledge  of  this  depart- 


364  AMERICAN   JURISPRUDENCE.  §  402 

rnent  of  the  law  so  far  at  least  as  it  can  qualify  individual 
privileges  and  obligations.  There  is  no  dearth  of  learning  on 
this  subject,  accessible  in  treatises,  decisions,  public  documents, 
examples ;  and  in  the  rapid  movements  of  the  nations  and  the 
interplay  of  vast  world-forces  there  is  every  day  some  new 
object-lesson  in  which  the  vigilant  student  may  discern  the 
application  of  great  principles  long  familiar  to  his  mind,  or  the 
enunciation  and  enforcement  of  new  doctrines  which  new  con- 
ditions make  it  necessary  to  incorporate  into  the  body  of  our 
International  Law. 


INDEX. 


REFERENCES  ARE  TO  PARAGRAPHS. 


Accounting,  in  equity 326 

Act,  defined 136 

Act  of  Settlement 246 

Acts  and  Forbearances 136 

Actions,  commenced  by  writ        318 

Actions,  Civil,  Law  of 390 

Adequate  Remedy  at  Law 325 

Adjective  Law 163-165 

Administrative  Law        178 

Administration,  of  Intestate  Estates 332,  337 

Administrators 337 

Admiralty  Courts.     (See  Courts  of  Admiralty)  .     .     .       340-347 
jurisdiction  in  United  States    .     .       347,  356 

England ;!17 

Admiralty,  Law  of 12,  400 

Affirmative  Statutes 268,  280 

Agents  of  Corporations 75,  91 

Alfred,  King,  Dom-Boc  of 233 

Aliens,  status  of 61,  62 

rights  and  duties  of     . 61 

modern  views  of 62 

property  descends  to  whom 62 

Amalpiiitan  Table 341 

Ambassadors,  exemptions  of      ........... 

AMERICAN   Law.     (See  Law  divisions  of,  American)   .     .        184-190 

Analogous  Cases,  value  of  decisions  in 287 

Ancillary  Jurisdiction  of  Probate  Courts        ....     835 

Appellate  Courts        314 

Artificial  Person,  denned 16 

Associations,  UNINCORPORATED 87 


306  INDEX. 

Attachment  for  Contempt,  in  equity 329 

Aula  Regis .     317 

Awards,  enforcement  and  abrogation  of,  in  equity       ....     326 

Belligerents,  law  of 174 

Bill  of  Rights 246,  251 

Blackstoxe's  Commentaries 233 

Bracton's  Laws  and  Customs  of  England 233 

Breach  of  Contract 143,  144 

Bridges,  liability  of  public  corporation  for 109 

Britton 233 

By-Laws,  of  Private  Corporations 90,  282 

Public  Corporations 107,  282 

Canon  Law,  recognized  by  State 13 

Capacity,  governed  by  lex  ligeantice 196 

domicilii 197 

loci  actus      ..." 199 

Cases,  study  of  law  in  the 160 

Causes,  removal  from  State  to  Federal  courts 363 

Chancellor,  office  of 322,  323 

Changes  in  Law,  effect  of 204-210,  273,  277 

on  completed  transactions     205,  209,  273, 

277 
on  vested  rights  of  property  206,  209, 

273,  277 
on  contract  obligations  207,  209,  273,  277 
on  incompleted  transactions  205,  273,  277 
on  expectant  or  contingent  rights     .    206, 

273,  277 

Charitable  Corporations,  are  trustees        93 

Charter  of  Corporation,  how  granted 72 

construed         73 

limits  corporate  powers  ....       73 

Charter-Parties,  in  admiralty  jurisdiction 314 

Child.     (See  Infant) 25-31 

Child,  Unborn,  rights  of 17 

Christian  Names 21 

Church  Law,  recognized  by  State        13 

Circuit  Courts,  of  the  United  States 355 

Circuit  Courts  of  Appeals 354 

Citizens,  defined 54 


INDEX.  307 

Citizens,  status  of 54-60 

rights  and  duties  of 58-60 

belong  to  one  State  only 54 

State  may  admit  or  exclude 55 

by  birth  or  adoption 56 

by  naturalization 56 

of  United  States,  who  are 56 

of  States  of  American  Union 57 

political  rights  of 5s.  12 :l 

personal  rights  of 59,  123 

duties  of 60 

protection  of  by  State 59 

Citizenship,  of  wives,  infants,  residents,  etc 56,  57 

of  inhabitants  of  new  territory 56 

of  United  States  and  States  not  identical      ...       57 
transfer  of,  from  one  State  to  another      ...      55,  57 

Civil  Actions,  Law  of 390 

Civil  Law,  defined 10,  162,  189 

when  codified 162 

authority  of  in  Louisiana 189 

Claims,  Court  of :>57 

Codes,  defined 261 

legal  importance  of 262 

not  suited  to  progressive  States 262 

Coercion  defined        44 

(See  Duress) 44,  45 

Coke,  Sir  Edward,  Institutes  of 233 

Collision,  cases  of  in  admiralty  jurisdiction 344 

Colonies,  American,  force  of  English  law  in 184 

Combination  ok  Cokporations.     (See  Corporations)     ...       SI 

Comity  of  States 191,203 

subject  to  local  law 203 

Common  Law,  defined 10 

different  meanings  of  the  name 11 

in  the  United  States 15,  226 

Courts  of 317-321 

Reports 234 

Commutation  of  Punishment 117 

Condonation  of  Wrongs 117 

Confessor,  Laws  of  Edward  the 233 

Conflict  of  Laws.     (See  Jurisdiction  of  Laws)  .     .     177,191-210 

CONSOLATO    DEL    MAKE 341 


368  INDEX. 

Consolidation  of  Corporations.     (See  Corporations)      .     .      81 

Constitutional  Convention 241 

Constitutional  Law 178,  401 

Constitutionality  of  Treaties,  Statutes,  etc.   .    253,  274-278 

Constitution 239,  240,  253 

nature  of 240 

written  or  unwritten 239,  240 

preparation  and  adoption  of 241 

contents  of 242 

when  takes  effect 243 

presumed  to  be  prospective  only 244 

amendment  of 245 

a  "  limitation  of  powers  " 240 

a  "  grant  of  powers  " 240 

history  of  English  and  American "246 

of  United  States,  nature  of 249 

supremacy  of 250 

a  "  grant  of  powers  "...     249 

contents  of 251 

interpreted     by    Unwritten 

Laws 252 

controls  treaties  and  statutes     253 

of  States  of  the  Union,  nature  of     .     .     .       247,  248 

written  and  unwritten  .    247, 

248 

contents  of 251 

how  interpreted    .     .     .     252 

a  "  limitation  of  powers  "   240, 

247 

Contempt  of  Court 309 

attachment  for  in  equity 329 

Context  of  Statute,  interpretative  value  of 296 

Contract,  breach  of 143,  144 

obligation  of 207 

not  affected  by  change  of  laws  207,  209,  273, 

277 

Contracts,  Law  of 397 

of  infants 27,  28 

void  or  voidable 27 

ratification  of  voidable 27,  28 

for  necessaries 27,  28 

of  insane  persons 35,  40 


INDEX.  369 

Contracts  of  married  women 42,  43 

of  persons  under  duress        45 

of  corporations       75,  76 

governed  by  lex  loci  contractus 200 

solutionis 201 

pacti 202 

maritime 342,  344 

specific  performance  in  equity 325,  320 

Contractual  Rights 128 

Coram  non  Judice       310 

Corporations 16,71-112 

defined 16 

Law  of 398 

nature  of 71 

necessity  for 71 

created  by  State 72 

by  special  charter  or  general  statute  .     .  72 

charter  of 73 

how  construed 73 

franchises  of 74 

transfer  of 74 

powers  of 74 

officers  and  agents  of 7"> 

corporate  liability  for  .     .  75 

acts  Ultra  Vires  defined 76 

invalid 76 

name  and  identity  of 77 

seal  of 77 

status  of 78 

cannot  inherit  or  have  heirs 78 

suffer  corporal  punishment 78 

crimes  of 78,  00 

have  a  reputation  to  vindicate 78 

no  two  have  same  status 78 

domicile  or  citizenship  of 7!* 

act  in  other  States  by  comity ~U 

by  agents  only 7!» 

act  as  an  entirety  only  in  domicile 79 

control  of  State  over 30 

charter  a  contract  not  to  be  impaired  ....  80 

how  far  amendable  by  State      ....  80 

franchises  and  property  subject  to  eminent  domain  80 
24 


370  INDEX. 

Corporations,  combination  or  consolidation  of 81 

effect  on  rights 

and  liabilities  81 

dissolution  of S2 

effect  on  property  rights      ...  82 

receivership  after 82 

personality  distinct  from  members •  83 

acts  of  members  not  acts  of  corporation    ...  83 

notice  to  members  not  notice  to  corporation       .  83 

DeJure 84 

De  Facto 85 

Quasi 86 

Sole  and  Aggregate 88 

Public,  Private,  and  Quasi  Public 89 

Private .      90-99 

attributes  of 90 

organization  of 91 

officers  of 91 

promoters  of 91 

management  of 91 

officers  are  trustees  for 91 

powers  of 92 

cannot  be  enlarged  by  other 

States 92 

Civil 94 

Eleemosynary      .......      93,  94 

Stock 95-99 

organization  of 95 

shares  of  stock 96 

rights  of  stockholders    .     .     .       96,99 

liabilities  of  stockholders  ...  97 

ownership  and  transfer  of  stock  .  98 

Quasi  Public 100-105 

franchises  of 100 

right  to  occupy  public 

property  .  .  101 
of  eminent  do- 
main .  .  .  102 
of  taxation  .  .  102 
to  a  monopoly  .  103 
to  take  tolls  .  104 
oontrol  of  State  over 105 


INDEX.  371 

Corporations,  Public 106-111 

nature,  powers,  and  property  of     .     .     .  106 

charter  when  presumed 106 

may  have  private  corporate  powers    .     .  106 

cannot  issue  commercial  paper       .     .     .  106 

taxing  power  of 106 

power  to  incur  debts 106 

courts  may  prevent  extravagance  of  .     .  106 
legislative  powers  of    ....     107,264  282 

by-laws  when  valid 107 

jurisdiction  of  over  strangers      .  107 

administrative  powers  of 108 

when  judicial  .  108 
when     ministe- 
rial    .     .     .  108 
not  liable  for  exercise  of  judicial  powers  108 
liable  for  exercise  of  ministerial  powers  108 
liability  for  streets,  grading,  repair,  etc.  109 
for  sewers,  building,  repair,  etc.  109 
for  bridges,  health  regulations  .  109 

for  public  officers 110 

for  corporate  officers    ....  110 

for  private  agents 110 

officers  of,  classes  and  degrees  .     .     .     .  HO 

control  of  State  over HI 

States  are -i\o 

CovRT*    ■ '.'.'.'.'.     ."305-364 

nature  of o()r 

consist  of  whom oqk 

how  created oq- 

when  able  to  act ->«.- 

antiquity  of 305 

make  laws      . j™ 

interpret  laws 0aq 

apply  laws !  304 

decide  questions  of  constitutionality 073 

jurisdiction  of,  over  persons 306 

subjects-matter 306,  307 

by  consent  of  parties 31  n; 

not  by  fictitious  change  in  subject     .     .  307 

outside  State  directly 307 

outside  State  indirectly 308 


872  INDEX. 

Courts,  jurisdiction  of,  over  what  actions 308 

presumed  after  judgment 308 

inherent  power  to  appoint  officers       309 

make  rules  of  practice 309 

keep  and  amend  records      ....  309 

preserve  order 309 

enforce  decrees 309 

punish  contempts 309 

contempt  of   .     . 309 

terms  or  sessions  of 310 

proceedings  of 311 

judgments  of,  when  final 311 

merge  original  claim 311 

conclusive  when  and  where 311 

when  collaterally  attacked 311 

of  United  States  and  sister  States  .     .     .  311 

authority  of,  as  precedents     .     .     .       286,  287 

of  record  and  not  of  record 312 

superior  and  inferior  jurisdiction 313 

general  and  limited  jurisdiction 313 

appellate,  civil,  criminal,  provisional 314 

take  cognizance  of  what  controversies 315 

parties  to  suits  in 315 

course  of  procedure  in 315 

systems  of 316 

of  Common  Law 317-321 

origin  of 317 

topical  jurisdiction  of 318 

procedure  in,  by  original  writ     .     .     .  318 
narrow  field  of  jurisdiction     .     .     .  318-321 

parties  to  suits  in 319 

redress  obtainable  in 320 

limitations  of  relief  by 321 

of  Equity 322-331 

origin  of 322 

necessity  for 322 

development  of •.     .     .  323 

scope  of  redress  in 323-325 

conflict  of,  with  courts  of  common  law  .     .     .  324 

test  of  jurisdiction  of 325 

topical  jurisdiction  of 325,  326 

indirect  jurisdiction  of 327 


INDEX.  373 

Courts,  of  Equity  will  settle  entire  controversy 327 

no  jurisdiction  over  crimes 328 

follow  the  law  of  rights 328 

limits  of  jurisdiction 328 

proceedings  in 329 

jurisdiction  over  infants  and  incapables      .     .  330 

merger  of,  with  courts  of  common  law  .     .     .  331 
merger  of,  with  courts  of  common  law  impos~ 

sible  as  to  Federal  courts 331 

of  Probate 332-339 

nature  and  origin  of 332 

in  the  United  States 333 

ordinary  and  special  jurisdiction  of      .     .     .  334 

primary  and  ancillary  jurisdiction  of   .     .     .  335 

jurisdiction  over  testate  estates 336 

intestate  estates     ....  337 

guardians  and  trustees  .     .  338 

importance  of 339 

of  Admiralty 310-347 

necessity  for 340 

origin  and  development  of 341 

history  of  jurisdiction  of :',41 

subjects-matter  within  jurisdiction  of  .  342-344 

waters  within  jurisdiction  of 342 

concurrent  jurisdiction  with  courts  of  law 

and  equity 343 

controversies  within  jurisdiction  of  .     .     .  344 

jurisdiction  in  rem 345 

conclusiveness  of  judgments  in  rem  .     .     .  345 

proceedings  in 346 

in  England  and  the  United  States   .     .     .  347 

of  Extraordinary  Jurisdiction 348,  351 

Courts  Martial 349 

Military ....  350 

Provisional :i">l 

Federal    352-364 

jurisdiction  of 352 

common  law  ami  equity  powers  of    ...  359 

limited  topical  jurisdiction  of 360 

territorial  jurisdiction  of 361 

concurrent  jurisdiction  with  State  courts  .     .  358 

Supreme  Court  of  the  United  States      .     .     .  353 


374  INDEX. 

Courts,  Federal,  Circuit  Court  of  Appeals 354 

Circuit  Courts 355 

District  Courts 356 

Court  of  Claims 357 

Courts  of  the  District  of  Columbia   ....  357 

follow  State  interpretation  of  State  laws    .     .  183 

State  and  Territorial 362 

follow  Federal  interpretation  of 

Federal  laws 183 

concurrent  jurisdiction  with  Fed- 
eral courts 358 

error  and  removal  of  causes  from 

to  Federal  courts       ....  363 

Federal  and  State,  future  development  of      ....  364 

Creditors  of  Corporation,  rights  against  stockholders     .     .  97 

Crimes  defined        .              141 

how  prosecuted  and  punished 141 

Law  of 392 

include  act  and  intent 30 

specific  intent  in 30 

of  infants 30 

of  insane  persons 38 

of  corporations 78,  90 

no  adequate  compensatory  remedy  for 151 

preventive  remedies  for 153 

Criminal  Procedure,  Law  of 178,  392 

Curative  Laws 205,  273-277 

Customary  Law.     (See  Common  Law;    Law,  forms  of,  Un- 
written)            216-235 

Customs,  nature,  origin,  and  obligation  of 217 

how  enforced 218 

transmutation  into  retrospective  law 219 

into  prospective  law 220 

what  are  entitled  to  judicial  sanction 221 

immemorial 221 

continued 221 

peaceable 221 

reasonable        221 

certain , 221 

compulsory 221 

consistent  with  other  customs 221 

ancient 222 


INDEX.  375 

Customs  modern        223 

may  change  law 221 

may  interpret  law 289,  299 

Damages,  in  money  an  adequate  compensation  for  wrongs    .     .     152 

Damnum 142 

absque  injuria 142 

Day,  the  legal  unit  of  time 383 

law  knows  no  fractions  of 25,  383 

Death,  when  presumed 18,  382 

civil,  unknown  to  American  law 18 

supposed,  but  not  actual,  no  effect  on  rights     ....       18 

Decisions.     (See  Judicial  Decisions) 231,  285-288 

Declaratory  Statute     268 

Decrees  in  Equity,  how  enforced 329 

Deed,  informalities  in,  how  cured 205 

De  Facto  Corporations 85 

De  Facto  Officers.     (See  Officers,  de  facto) 49 

Definitions,  descriptive  and  prescriptive 230 

of  the  Unwritten  Law 230 

De  Jure  Corporations 84 

De  Jure  Officers 49 

Demurrage,  cases  of  in  admiralty  jurisdiction 344 

Descriptive  Names  of  Persons 21 

Dialogus  de  Scaccario 233 

Directory  Statute 272 

Disclosure  in  Equity 325,  326,  327 

Dissolution  of  Corporations.   (See  Corporations,  Dissolution) 

82,90 

District  Courts  of  the  United  States 356 

District  of  Columbia,  courts  of 357 

Divine  Law 5 

Divorce 41 

Doctor  and  Student       283 

Dom-Boc  of  King  Alfred 233 

Domesday  Book 283 

Domestic  Relations,  Law  of 394 

Domicile 60-70,  79,  92,  l'.<7 

defined       66 

locality  of 67 

change  of 69 

of  origin 


376  INDEX. 

Domicile  distinguished  from  residence 66 

tests  of 66,  69 

of  wives,  widows,  infants,  wards 68 

of  corporations 79,  92 

law  of.     (See  Lex  Domicilii) 70,  197 

Drunkenness,  not  insanity  at  law         34 

no  excuse  for  crime        34,  38 

may  cause  insanity 34,  38 

Duress,  defined 44 

status  of  persons  under 44,  45 

avoids  contracts 45 

may  relieve  from  criminal  liability 45 

poverty  or  danger  is  not 45 

Duties,  nature  of 132 

legal,  correspond  to  legal  rights 133 

classes  of 134 

relation  of  to  status „     135 

comprise  acts  and  forbearances      . 136 

positive  and  negative 136,  137,  139 

extinguishment  of        13S 

of  citizens 60 

prescribed  by  State „     .     133 

when  and  how  defined  by  law 156-161 

Ecclesiastical  Courts,  no  civil  jurisdiction  in  United  States     333 

Ecclesiastical  Law 13,  178 

Egypt,  Laws  of 162 

Eleemosynary  Corporations 94 

Eminent  Domain 102 

Enacting  Clause  of  Statute 266 

Enforcing  Judgments  at  Law,  in  Courts  of  Equity   .     .     .     326 

English  Decisions,  of  what  authority  in  the  United  States       .     188 

English  Law.      (See  Law,  divisions  of,  English)   ....  184-190 

presumed  of  force  in  all  States  of  Union   .     .     .     212 

history  of 224 

Enlarging  Statute 268 

Equality  before  the  Law 23 

Equity,  Courts  of.     (See  Courts  of  Equity) 322-331 

control  over  infants  and  incapables       .  26,  40,  330 
jurisdiction  over  property  of  infants      .     .      26,  31 

follow  the  rules  of  law        32S 

determine  case  as  a  whole 327 


INDEX.  377 

Equity,  Law  of 399 

Error.  Writ  of,  from  State  to  Federal  Courts 363 

Estates,  Intestate,  settled  in  probate  courts 337 

Testate,  settled  in  probate  courts 336 

Law  of 396 

Eternal  Law 2 

pervades  all  valid  human  laws 6,  7 

Evidence,  Law  of 391 

Exceptions  in  Statutes 266 

Exchequer,  Court  of 317 

Executive  Acts,  when  valid       .     .     .     .     • 8 

Expatriation,  Right  of 55,  57 

Ex  Post  Facto  Laws 208,  273,  277,  280 

Family  of  Nations 173 

Family  Rights 127.  128,  176 

Federal  Constitution.     (See  Constitution  of  United  States),    240, 

249-253 

based  on  English  Law 189 

Federal  Courts.     (See  Courts,  Federal) 352-3G4 

independent  of  State  law 360 

follow  local  interpretation  of  State  law     .     .     183 

concurrent  jurisdiction  with  State  Courts      .     358 

Federal  Law.     (See  Law,  divisions  of,  Federal)  ....  179-183 

Fictions  and  Presumptions 365-387 

field  of 365 

necessity  for 366 

related  to  Law  of  Evidence  .     .     .     387 

Fictions  of  Law 367-072 

nature  of 367 

reasons  for  adopting 367 

falsity  of  the  facts  assumed 368 

possibility  of  the  facts  assumed 368 

subordinated  to  justice 369 

substitutes  for  legislation 370 

law  extended  by 370 

classes  of 371 

affirmative  and  negative    ....     371 
substantive  and  relative     .     ■     .     .     '■'•7\ 

invention  and  abandonment  of 372 

number  of 372 

distinguished  from  presumptions      ....     373 


378  INDEX. 

Fiduciary  Rights ,     .     .     128 

Finality,  in  the  Interpretation  of  Unwritten  Law 292 

Fitzherbekt's  Abridgment 233 

Fitzherbert's  Natura  Brevium 233 

FitzXigel's  Dialogue  of  the  Exchequer 233 

Fleta 233 

Forbearances      136 

Forfeiture  of  Rights 131,  138 

Forfeitures  and  Penalties,  relief  in  equity 320 

Fori  Lex.      (See  Lex  Fori) 194,  195 

Forms  of  Law 214-282 

Fortescue's  De  Laudibus  Legum  Anglic 233 

Franchises  defined 74 

of  corporations 74 

of  quasi  public  corporations 100-104 

not  transferable  without  leave  of  State      ....       74 

Fraud,  right  to  immunity  from 127 

relief  against  in  equity 326 

General  Statute    270 

Glanville's  Laws  and  Customs  of  England 233 

Grant  of  Powers,  Federal  Constitution  is      ....       240,  249 

Guardian  ad  litem,  of  infants  .     .  ■ 31 

of  property  of  infants 26 

of  insane  persons  and  incapables 40 

probate  jurisdiction  over 338 

Habeas  Corpus  Act 246 

Hale's  History  of  Law,  etc 233 

High  Seas,  jurisdiction  over 12 

Horse's  Mirrour  of  Justices 233 

Human  Being,  existence  begins  and  ends  wheD      ....      17,  18 

Human  Law,  denned 6 

derived  from  eternal  law 6,  7 

when  valid 8 

Husband,  liability  for  acts  and  support  of  wife 42,  43 

rights  over  person  and  property  of  wife  ....      42,  43 

Idem  Sonans   .     .     .     .     o 20 

Idiots 32 

Illegitimate  Children,  custody  of 26 

Impeachment  of  Public  Officers 52 


INDEX.  379 

Incapable s,  guardianship  of 40 

jurisdiction  of  equity  over 330 

Indians,  status  of 63 

Infants,  status  of 25-31 

defined 25 

when  become  adults 25 

domicile  of 68 

disabilities  of,  fixed  by  law  of  domicile 25 

not  removed  by  emancipation  ....       25 

by  marriage 25 

by  his  own  act     ....       25 

■who  may  take  advantage  of    ...     .       25 

all  persons  have  notice  of     .     .     .     .     25,  28 

control  over  their  own  persons  and  property  ....       26 

vests  in  State  primarily 26 

exercised  through  courts  of  equity    .  26,  330 

resides  in  father    .     , 26 

mother 26 

guardian 26 

how  transferred  by  parent  to  others       .       26 
adoption    ....       26 

property  of,  parent  no  control  over 26 

vests  in  guardian 26 

power  to  marry 26 

to  do  acts  beneficial  to  themselves 26 

to  enlist  in  army  or  navy 26 

to  make  a  will 26 

to  contract 27, 28 

for  necessaries 27,  28 

to  act  as  agent  or  attorney 28 

to  appoint  agents  or  attorneys 2S 

contracts  of 27,  28 

void  or  voidable 27 

ratification  of 27.  28 

repudiation  of 27.  28 

for  services  and  wages 28 

for  apprenticeship 28 

of  partnership 28 

of  agency 28 

for  the  sale  of  personal  property      ...       28 

of  real  property 28 

revocation  by  privies 28 


380  INDEX. 

Infants,  liability  for  torts 29 

not  if  involve  contracts 29 

for  crimes 30 

must  sue  by  guardian  or  next  friend 31 

defendants  must  have  guardian  ad  litem 31 

must  sue  and  be  sued  in  their  own  names       ....  31 

parol  demur  of 31 

judgment  against,  without  guardian,  voidable    ...  31 

decrees  of  equity  as  to  property  of 31 

cannot  estop  themselves  from  asserting  infancy      .     .  31 

Injunctions  in  Equity 154,  326 

against  public  officers 52 

Injuria 142 

sine  damno 142 

In  Personam,  rights 125,  128,  130 

Inquisition  of  Lunacy 40 

In  Rem,  proceedings  in  admiralty 345 

In  Rem  Rights 125,  127,  120 

Insane  Persons,  status  of 32-40 

defined 32 

include  idiots  and  lunatics 32 

varieties  of 33 

compared  with  infants 35 

contracts  of 35 

wills  of 36 

torts  of 37 

crimes  of 38 

how  to  sue  and  be  sued 39 

attorneys  and  guardians  ad  litem  of  ...     .  39 

when  may  testify 39 

guardianship  of 40,  330 

Insanity  defined 32 

varieties  and  degrees  of 32,  33 

how  proved 34 

burden  of  proof  of 34 

in  criminal  cases 38 

resulting  from  drunkenness 34 

drunkenness  is  not,  in  law 34 

Insurance,  Marine,  in  admiralty  jurisdiction 344 

Intent,  Legislative,  as  interpreting  law 300 

International  Law.     (See  Law,  divisions  of,  International.)  .  11, 

171-174,  402 


INDEX.  381 

Interpretation  of  Law.     (See  Law,  Interpretation  of)       283—303 

of  Unwritten  Law 284-292 

of  Written  Law 293-303 

Interstate  Comity 191,  203 

Intervenors  in  Admiralty      . 346 

Judgments,  final,  conclusiveness  of 311 

not  collaterally  attacked 311 

of  sister  States 311 

how  enforced  in  equity 326 

how  relieved  against  in  equity 326 

against  infant,  voidable  without  guardian     ...       31 

Judicial  Act,  when  valid 8 

Judicial  Acts  of  Public  Corporations 108,  109 

Judicial  Decisions,  nature  and  scope  of 231,  285 

authority  of 286 

in  other  States 190 

in  analogous  cases 287 

declare  Unwritten  Law 231 

interpret  Unwritten  Law 285-288 

Written  Law 299 

Judicial  Legislation,  warranted  by  law 166,  219 

Judicial  Notice,  of  existing  laws 211,212 

Judicial  Officers,  liability  of 50 

Jurisdiction  of  Courts.     (See  Courts,  Jurisdiction)     .     .  306-308 

over  persons 306,  307 

over  subjects-matter 306 

when  conferred  by  consent       .     .     .     306 
not  conferred  by  fictitious  change  in 

subject-matter 307 

not  outside  State 307 

indirect  over  persons  and  property   .     3(T8 

when  presumed 308 

concurrent,  of  Federal  and  State 

first  to  act  retains  suit    .     308 

Jurisdiction  of  Laws 177, 191-210 

as  to  place 194-203 

as  to  time     ........       204-210 

Jurists,  writings  of,  as  interpreting  law 290 

King  as  Parens  Patrice 330 

King's  Bench.  Court  of 317 


382  INDEX. 

Labor  Laws 178 

Land,  ancient  importance  of 389 

Law,  defined 1 

a  dictate  of  reason * .         1 

the  eternal 2 

the  natural 3 

the  positive 4 

the  divine 5 

the  human 6 

a  phase  of  the  eternal 6,  7 

when  valid 8,  265,  273-278 

.     uniformity  of  in  all  nations  and  ages     ...         9 

the  Civil 10 

the  Common 10 

the  International 11,  171-174,  402 

the  Maritime 12,  340,  341 

the  Ecclesiastical 13,  178 

attitude  of  State  toward 13 

subjects-matter  of 16 

made  for  persons  of  normal  status 24 

to  define  and  assert  rights 119 

less  needed  in  orderly  States 119 

by  whom  enacted 215 

study  of  in  the  cases 160 

divisions  of 162-190 

substantive  and  adjective 163-165 

substantive,  rules  of 164 

adjective,  rules  of 165 

national  and  international    ....     166-174,178 

national,  source  of 166 

authority  over  State   ....     167 
citizens    .     .     .     168 

two  in  same  State 169 

territorial  jurisdiction  of      .     .     170 

international,  source  of 171 

authority  of 171 

development  of   ...     .     172 

where  stated 172 

territorial  jurisdiction  of  .     173 

topical  jurisdiction  of  .     .     174 

a  department  of  law     .     .     402 

private  and  public 175-178 


INDEX.  383 

Law,  divisions  of,  private  and  public, 

private,  divisions  of 176 

law  of  personal  rights 176 

family  rights 176 

property  rights 176 

private  wrongs 176 

private  remedies 176 

always  national  law 177 

public,  divisions  of 178 

international  law  .     .      171-174,  178,  402 

constitutional  law 178,  401 

administrative  law 178 

parliamentary  law 178 

revenue  law 178 

ecclesiastical  law      ....  13,  178 

military  law 178,  349 

martial  law 178,  350 

police  laws 178 

poor  laws 178 

labor  laws 178 

school  laws 178 

law  of  public  wrongs 178 

remedies 178 

Federal  and  State 179-183 

distinctions  between  .  .  179 
sources  and  authority  of  .  179 
territorial  jurisdiction  of  180,  361 
topical  jurisdiction  of  .  .  181 
concurrent  jurisdiction  of  181, 
182,  358 
prevail  in  all  the  States  of 

the  Union 179 

administered  in  all  courts  .     183 
Federal  governs  subjects  of 

national  character      .     .     181 
State  governs  subjects  not 
of  national  character  .     .     181 

English  and  American 184-190 

English,  source  of 184 

how  far  part  of  our  law  .  .  .  185 
controls  the  American  law  .  .  ls6 
interpreted  by  English  decisions      188 


384  INDEX. 

Law,  divisions  of,  English  and  American, 

English,  adopted  in  what  States    .     .     .     189 

presumed  of  force  in  all  States      190 

American,  based  on  English      .     .     .     .     185 

interpreted  by  English      .     .     187 

forms  of 215-282 

Unwritten  Law 215-235 

origin  of 216 

development    of     from    custom, 

etc 217-223 

history  of 224 

of  States  of  the  American  Union    225 
of  the  United  States      ....     226 

where  expressed 227 

maxims  of 227-229 

definitions  of 227,  230 

judicial  decisions  of  .     .     .       227,  231 
treatises  on      ....    232,  233-235 

reports  of 232,  234 

interpretation  of  ...     .        284-292 

Written  Law        236-282 

nature  of 236 

origin  of 237 

dependence  on  Unwritten  Law  .     237, 

238 

divisions  of 239-282 

Constitutions  240-253 
Treaties  .  .  254-260 
Codes  .  .  .  261,  262 
Statutes  .  .  263-282 
interpretation  of  ...     .       293-303 

jurisdiction  of       177,191-210 

as  dependent  on  place 194-203 

lex  fori 194,  195 

governs  remedy 194 

yields  to  what  laws       .     .     .     .     195 

lex  ligeantice 196 

lex  domicilii 70,  197 

lex  rei  sitce 198 

lex  loci  actus 199 

lex  loci  contractus 200 

lex  loci  solutionis 201 


INDEX. 


185 


Law,  jurisdiction  of,  as  dependent  on  place, 

lex  loci  pacti 202 

as  dependent  on  time 204-210 

over  completed  transactions      .      205,  209, 

273,  277 
over  vested  property  rights  .     .      206.  2n9, 

273,  277 
over  contract  obligations  207,  209,  273,  277 
over  incomplete  transactions  205,  273,  277 
over  expectant  or  contingent  rights     .    206, 

273,  277 
laws  curing  formal  defects   .     .      205,  209, 

273,  i'77 

ex  post  facto  laws   ....    208,  273,  277 

retrospective  laws  .     .     .     ,    209,  273,  277 

may  change  remedies     .    209,  273,  277 

relieve  from  liability      .    209,  273,  277 

law  may  be  in  force  though  repealed       192 

proof  of 211-213 

interpretation  of 283-303 

necessity  and  function  of      .     .    283,  284,  293 
principally  by  courts 283 


Unwritten  Law,  standards  employed       .  284 
by  judicial  decisions    285-288 
comparative  value  .  286 
in  analogous  cases  .  287 
effect  on  verbal  ex- 
pressions   .     .     .  288 
by    self-evident    princi- 
ples       289 

by  popular  custom    .     .  289 

by  usage  of  officers   .     .  289 

by  writings  of  jurists    .  290 
by"  cognate  branches  of 

law 291 

no  finality  in  ...     .  292 

Written  Law 293  303 

defines  words  only    .     .     .  293 

ordinary  words      .      .  29 1 

technical  words      .      .  295 

ambiguous  words    296-300 

by  context      .     .  296 

25 


386  INDEX. 

Law,  interpretation  of,  Written  Law,  defines  ambiguous  words, 

by    title,    pre- 
amble, etc    .  297 
by  statutes  in 

pari  materia  29S 
by  judicial  de- 
cisions   .     .  299 
by  popular  cus- 
tom   ...  299 
by     general 

opinion   .     .  299 
by     legislative 

intent     .     .  300 

strict,  of  penal  laws 301 

of  laws  in  derogation  of  rights    .  301 

entailing  forfeitures    .      .  301 

conferring  police  powers  .  301 

granting  exemptions  .     .  301 

«  taxation     and     eminent 

domain 301 

creating  monopolies    .     .  301 
delegating  or  suspending 

governmental  powers  .  301 
conferring    right    to   sue 

State 301 

affecting   jurisdiction    of 

courts  ......  301 

retrospective      ....  301 

repealing  previous  laws  .  301 
promoting  private   inter- 
ests         301 

making  provisos  in  stat- 
utes         301 

liberal,  of  remedial  statutes      ....  302 

application  of 304-3G4 

by  courts  and  other  agencies 304 

by  courts      (See  Courts) 305-364 

departments  of ".     -  388-402 

created  by  social  conditions 388 

Law  of  Real  Property    . 389 

Law  of  Civil  Actions 390 

Law  of  Practice.  Pleading  and  Evidence  .  391 


INDEX.  S87 

Law,  departments  of,  Law  of  Crimes 302 

Law  of  Torts 393 

Law  of  Domestic  Relations 394 

Law  of  Personal  Property 395 

Law  of  Estates 39G 

Law  of  Contracts 397 

Law  of  Corporations 398 

Law  of  Equity 399 

Law  of  Admiralty 400 

Constitutional  Law 401 

International  Law 402 

"Law  of  the  Land" 216 

Law,  Private  International 177,  191-210 

Laws,  Conflict  of 177,  191-210 

of  the  Confessor        233 

of  the  Sea 340,  341 

of  Rhodes 341 

of  Oleron 341 

of  Wisbuy 341 

of  War 350.  402 

Legal  Controversy 315 

Legal  Rights 119-131 

Legal  Duties 132-138 

Legal  Wrongs 139-147 

Legal  Remedies 118-155 

Legislative  Acts,  when  valid 8,  265,  273-278 

as  to  mode  of  enactment       .     .     265 
as  to  authority  of  legislature  271-278 

by  what  bodies  enacted 166,  264 

constitutionality  of 274-278 

Legislative  Authority,  where  resides  ......       166,264 

the  Supreme  power  in  the  State  .     .     166 
Legislative  Journals,  Statute-Rolls,  etc.  as  evidence 
Legislative  Proceedings,  bow  far  reviewed  by  courts .    .     .    265 

Legislators,  exemptions  of 53 

Legislature,  must  act  according  to  established  forms      .     .     .     265 

cannot  violate  fundamental  principles   3,  265,  273-278 

exercise  judicial  or  executive  powers  .     .     --'7ii 

delegate  its  powers 276 

limit  power  of  future  legislatures  .     .     .     -J7'i 

infringe  rights  of  citizens 276 

lose  its  powers  by  non-user 276 


388  INDEX. 

Legislature,  cannot  defeat  vested  rights  of  property    .     .  205,  206, 

273,  277 
impair  contract  obligations    .     .  205-207,  209, 

273,  277 

pass  ex  post  facto  laws        ....       208,280 

embarrass  its  future  by  contracts    »     .     .     277 

intent  of,  as  interpreting  statutes      .....     300 

how  proved 300 

Lex  Domicilii 70,  197 

Lex  Fori 194,  195 

Lex  Ligeantle 196 

Lex  Loci  Actus 199 

Lex  Loci  Contractus 200 

Lex  Loci  Pacti 202 

Lex  Loci  Solutionis 201 

Lex  Rei  Sit^e 198 

Lex  Talionis 149,  152,  157 

Libel  in  Admiralty 346 

Liberal  Construction  of  Statutes 302 

Lien  Maritime,  in  admiralty  jurisdiction 344 

Life,  begins  and  ends  when 17,  18 

Limitations  of  Powers,  Constitutions  of  States  of  the  Union 

are 240,247 

Littleton's  Tenures 233 

Local  Statutes 270 

Lord  High  Admiral's  Court 347 

Louisiana,  Civil  Law  in 189 

Lunacy,  Inquisition  of        40 

Lunatics.     (See  Insane  Persons) 32 

Mandamus,  writ  of,  against  public  officers 52 

Mandatory  Statutes       ..'.... °     272 

Marine  Ordinance  of  Louis  XIV 341 

Marine  Insurance 3*4 

Maritime  Law 12,  340,  341 

Maritime  Affairs,  include  what 340,  342 

Maritime  Contract 342.  344 

Maritime  Lien ;^4 

Maritime  Tort 342,  314 

Marriage,  legal  conception  of 41 

control  over 41 

how  contracted,  modified,  and  dissolved    ....       41 


INDEX.  389 

Marriage,  invalid,  how  validated 205 

Married  Women,  status  of,  under  ancient  and  modern  law       41-43 

separate  property  of 43,  326 

domicile  of 08 

Martial  Law 178,  350 

Martial  Courts 349 

Maxims,  of  the  Unwritten  Law 227-229 

fundamental,  primary,  secondary,  etc 228 

"  May,"  meaning  of        272 

Merger       131 

Military  Courts 350 

Military  Law 178,  349 

Military  Officers,  exemptions  of 53 

in  command  of  conquered  territory      .     .     351 

Ministerial  Officers,  liability  of 50 

acts  of 108,  109 

Ministerial  Powers,  of  Public  Corporations 108 

Mirrour  of  Justices 233 

Monopoly,  right  to 103 

Month,  is  calendar  month 383 

Mortgages,  foreclosure  and  redemption  of 326 

Multiplicity  of  Suits,  prevention  of  in  equity 326 

Municipal  Corporations.  (See  Corporations,  public)  .  106-111 
Municipal  Law.  (See  Law,  divisions  of,  National)  .  .  .  100-170 
"Mcst,"  meaning  of 272 

Names  of  Persons 19-22 

necessity  for 19 

identity  of 20 

is  identity  of  person    ....       19 

idem  sonans 20 

Christian 21 

Middle 21 

Surname 21 

descriptive 21 

change  of 22 

NAMES  OF  Corporations 77 

National  Law.    (See  Law,  divisions  of,  National)     .     .     .166-170 

Nations,  Family  of 17'. 

Law  of.     (See  International  Law)       .     .    11,171-171.  102 

Natura  Brevium 283 

Natural  Law 3 


390  INDEX. 

Natural  Person,  defined      .     .     .     . 16,  17 

life  begins  and  ends  when 17,  18 

Naturalization  of  Citizens 56 

Navigation  Improvement  Company 101 

Necessaries,  for  infants,  what  are 27 

Negative  Duties     .     .     .     .     .     . 136,  137,  139 

Negative  Statutes 268,  280 

Neutrals,  status  fixed  by  international  law 174 

New  Trials,  in  equity 326 

Notice,  to  Members  not  Notice  to  Corporation 83 

Obligation  of  Contract,  defined 207 

Office,  Public,  defined 46 

eligibility  to,  a  political  right     ......       46 

term,  tenure,  duties,  emoluments 47 

removal  from 47 

forfeiture  of 47 

two  or  more  in  same  person 47 

Officers,  Public,  status  of 46-53 

defined 46-48 

de  jure 49 

de  facto 49 

validity  of  acts  of 49 

liable  to  de  jure  officers  for  fees  col- 
lected       49 

quo  warranto  against 49 

ministerial  and  judicial 50 

liability  of 51,  52 

remedies  against 52 

exemptions  of 53 

State  not  liable  for  acts  of 51 

superior  not  liable  for  inferior 51 

salaries  not  attachable 53 

all  persons  presumed  to  know  authority  of    .       52 

of  Corporations 75,  91,  110 

Ole"ron,  Laws  of 341 

Organization  of  Corporations „     .     .     .     .       91 

Orphans'  Courts 332-339 

Pardon  .....     147 

Parent,  authority  over  child 26 

Pari  Materia,  Laws  in,  interpretative  value  of 298 


INDEX.  391 

Parliamentary  Law 178 

Parol  Demur 31 

Parties  to  Actions ,     .     .       315,  319 

Partition,  in  equity 32'J 

Penal  Laws,  effect  of  repeal 208,280,281 

strictly  construed , 301 

Penalties  and  Forfeitures,  relief  in  equity 320 

Perpetual  Statute     271 

Perpetuation  of  Evidence,  in  equity 326 

Person,  defined 16 

natural  and  artificial 16 

natural,  life  begins  and  ends  when 17,  18 

names  of 19-22 

identity  of •     .     .     .     .       19 

status  of 23-65 

domicile  of 66-70 

legal  equality  of 23 

artificial.     (See  Corporations) 71-112 

Personal  Rights,  Law  of .     .     .     .     .     176 

Personal  Security,  right  to 127 

Personal  Liberty,  right  to „     .     .     1J7 

Personal  Property,  Law  of 395 

governed  by  lex  domicilii 197 

Petition  of  Right i?  1 0 

Pilotage,  cases  of,  in  admiralty  jurisdiction 314 

Pleading,  Law  of 391 

Police  Laws 178 

Police  Powers,  of  Public  Corporations 109 

Political  Rights  of  Citizens 58,  123 

Poor  Laws 178 

Positive  Law • 1 

Practice,  Law  of 391 

of  the  courts  is  the  law  of  the  courts 391 

Preamble  of  Statute,  defined 266 

interpretative  value  of 297 

Precedents,  authority  of 286.  287 

Presumption,  of  Sanity 34 

that  English  Law  is  recognized  in  all  States    .     .     190 

Presumptions 365-387 

field  of 365 

necessity  for  .     .     .  366 

related  to  Law  of  Evidence 387 


392  INDEX. 

Presumptions,  nature  of 373 

of  fact  or  law 373 

distinguished  from  legal  fictions 373 

reasons  for  adopting 373 

of  law  and  fact  distinguished 374 

of  Law,  are  rules  of  law,  not  of  logic      ....  374 

do  not  require  probability 374 

uniform  in  origin  and  influence      .     •     .  374 

changeable  at  will  of  State 374 

imperative  on  the  courts 374 

if  disregarded,  new  trial 374 

juris  et  jure,  irrebuttable 375 

juris  tantum,  rebuttable 375 

of  Fact,  rest  on  logical  deduction 374 

depend  on  probability 374 

scope  measured  by  logical  conclusions     .  374 

unchangeable 374 

not  imperative  on  the  courts      .     .     .     .  374 

if  disregarded,  no  new  trial 374 

strong,  probable,  slight 376 

Mixed 377 

number  and  variety  of 378 

against  ignorance  and  wrong 379 

that  every  one  kuows  the  law 379 

that  all  things  are  done  correctly    ....  379 

that  all  children  are  legitimate 379 

that  every  one  knows  what  he  ought  to  know  379 

that  persons  assert  their  rights 380 

that  a  possessor  has  title 380 

that  rights  long  dormant  are  extinct  .     .     .  380 

that  the  course  of  nature  is  observed       ....  3S1 

that  persons  attain  the  usual  limit  of  life      .  381 
that  infants  under  seven  are  incapable  of 

crime 381 

that  all  persons  are  sane 381 

that  desire  and  opportunity  concurring,  the  act 

was  done 381 

that  silence,  flight,  suppression  of  evidence, 

show  guilt 381 

that  declarations  against  interest  are  true     .  381 

that  general  usages  of  society  are  followed       .     .  382 

that  customs  of  trade  are  observed      .     .     .  382 


INDEX.  393 

Presumptions  that  general  usages  of  society  are  followed, 

that  knowledge  of  agent  is  knowledge  of  prin- 
cipal   382 

that  parties  read  papers  before  signing  them     382 

that  letters  reach  their  destination       .     .     .     382 

that  states  of  fact,  once  existing,  continue  .     .     .     384 

in  reference  to  time 383 

in  reference  to  rights,  duties,  and  liabilities     .     .     385 

Conflicting 386 

Preventive  Remedies  in  Equity 323,  325,  326 

Private  International  Law 177,  193-203 

Private  Corporations.     (See  Corporations,  Private)    .      89,  90-99 

Private  Rights 123 

Private  Wrongs,  Law  of 142,  144,  176 

Private  Remedies,  Law  of 150,  152,  154,  176 

Pbivatk  Statutes 269 

Prize  Cases,  in  admiralty  jurisdiction 344 

Probate,  Courts.     (See  Courts  of  Probate) 332-339 

Districts 334 

of  Wills 332,  336 

Procedure  of  Courts,  in  general 311 

Law  of 391 

Proceedings,  in  Admiralty 346 

in  rem 345 

Equity 329 

Prochein  Ami 31 

Prohibition,  writ  of  against  public  officers 52 

Promoters  of  Corporations 91 

Proof  of  Laws 211-213 

Property,  corporeal  and  incorporeal 114,  115 

movable  and  immovable 116 

real  and  personal 117 

right  to 127 

Rights,  Law  of 176 

personal  governed  by  lex  domicilii 197 

real  governed  by  lex  rei  sitce 198 

vested  rights  not  affected  by  change  of  law    206,  273.  277 

public,  right  to  occupy 101 

Real,  Law  of 389 

Personal,  Law  of 395 

Provisional  Conns 314 

Provisos  in  Statutes,  defined 206 


394  INDEX. 

Provisos  in  Statutes,  interpretative  value  of 297 

Public  Corporations.     (See  Corporations,  Public)  .       89,106-111 
legislative  and  administrative  powers  of     264 

validity  of  by-laws 282 

Public  Office.     (See  Office,  Public) 46,  47 

Public  Officers.     (See  Officers,  Public) 46-53 

Public  Property,  right  to  occupy 101 

Public  Rights.     (See  Rights,  Public.) 123 

Public  Wrongs,  Law  of.     (See  Wrongs,  Public)  .     .     .       141,178 
Public  Remedies,  Law  of.     (See  Remedies,  Public)  .    151,  153,  178 

Public  Statutes 269 

Punctuation,  interpretative  value  of    .     '. 297 

Purchaser  at  Admiralty  Sale,,  title  of 345 

Quasi  Contracts 128 

Quasi  Corporations S6 

Quasi    Public    Corporations.       (See    Corporations,    Quasi 

public)       89,  100-105 

Quo  Warranto 49 

Ratio  Decidendi 285 

Real  Property,  denned 117 

governed,  by  lex  rei  sitce 198 

Law  of 389 

Recaption 130 

Receivers,  in  equity • 326 

of  dissolved  corporation 82 

Records  of  Courts,  authority  of 312,  313 

power  of  court  over 309 

Redress  of  Wrongs,  by  State,  right  of  citizen  to      ....     130 

(See  Remedies) 148-155 

Reformation  of  Instruments,  in  equity 326 

Register  of  Writs 233 

Relief,  against  Penalties  and  Forfeitures,  in  equity      ....     326 

against  Judgments  at  law,  in  equity 326 

Religious  Bodies,  laws  of,  recognized  by  State 13 

Religious  Corporations 93 

Remedial  Statutes 268 

liberally  construed 302 

Remedies .     •     • 148-155 

relation  of  to  rights,  duties,  and  wrongs       .    148,  156,  157 
primary  purpose  is  satisfaction  for  wrong     .     .         .     149 


INDEX.  395 

Remedies  placing  the  parties  in  statu  quo .     •     150 

compensatory,  for  public  wrongs 151 

for  private  wrongs 152 

preventive,  for  public  wrongs 153 

for  private  wrongs 154 

increase  with  definition  of  rights     .     .     .     161 

defects  in  present  application  of 155 

how  affected  by  changes  in  law      ....    209,  273,  277 

private,  law  of 176 

public,  law  of «     •     •     •     •     178 

Remedy,  includes  what 194 

governed  by  lex  fori 194 

Removal,  of  Causes  from  State  to  Federal  Courts  .....     363 
Removing  Cloud  from  Title,  in  equity     ....."..     326 

Repeal  of  Statutes 280,  281 

of  Penal  Statute,  effect  of "208,  280,  281 

Reprisal 149 

Reports,  of  Judicial  Decisions 232 

Common  Law        234 

Equity  234 

Rescission  of  Contracts,  in  equity 326 

Restraining  Statutes 208 

Retorsion 260 

Retrospective  Laws 209,273,277 

may  change  remedies  ....  209,  273.  277 
may  validate  invalid  acts  ....  209.  273 
may  remove  consequences  of  past  acts  .    209, 

273 

Revenue  Law ■..,....     178 

Rhodes,  Laws  of 341 

Rights 119-131 

denned 120 

based  on  Natural  and  Eternal  Laws 120-122 

originate  in  capabilities 120 

controlled  by  reason  and  justice 120 

protection  of  is  the  purpose  of  law 119 

sential,  legal  definition  and  assertion  of 121 

incidental,  legal  definition  and  assertion  of       ....     122 

public  and  private 123 

normal  and  abnormal 124 

in  rem  and  in  personam 125 

antecedent  and  remedial 120 


396  INDEX. 

Rights,  normal  antecedent  rights  in  rem 127 

in  personam 128 

normal  remedial  rights  in  rem 129 

in  personam 130 

extinguishment  and  transfer  of 131 

to  personal  security,  liberty,  property 127 

to  immunity  from  fraud 127 

contractual,  fiduciary 128 

family 127,  128 

of  self-defence,  recaption,  etc 130 

to  protection  through  the  courts 130 

of  citizens  as  such     .  58,  59 

not  affected  by  supposed  death 18 

vested,  expectant,  contingent 206,  273,  277 

how  affected  by  changes  in  law  .  .  192,  206,  209,  273-277 
logically  precede  duties,  wrongs,  and  remedies  .  .  .  156 
chronologically  follow  duties,  wrongs  and  remedies    .     .     157 

defined  by  redressing  wrongs 157 

by  prohibiting  wrongs 159 

many  not  yet  defined  by  law 158 

study  of  from  standpoint  of  wrongs 160 

relation  of  preventive  remedies  to  definition  of      ...     161 

Rules  of  Courts 309 

Salus  Populi  Suprema  Lex 228,  229 

Salvage,  cases  of  in  admiralty  jurisdiction 344 

Sanity,  presumed 34 

Satisfaction  of  Rights 131,  138 

School  Laws 178 

Sea,  Laws  of 340,341 

Seal  of  Corporation 77 

Seizure,  for  Violation  of  Revenue  Law 344 

Self-Defence,  right  of 130 

Sewers,  liability  of  public  corporation  for 109 

"  Shall,"  meaning  of 272 

Shares  of  Stock 96,  98 

Slaves,  status  of 64 

Sovereignty  of  State      .     .     .  7.  8,  54,  58,  123,  167,  171,  173,  276 

three  modes  of  exercise 8 

Specific  Intent  in  Crimes 30 

St.  Germain's  Doctor  and  Student 233 

Stare  Decisis 220 


INDEX.  307 

State,  defined 7 

result  of  Eternal  Law 7 

relation  to  society 7 

when  becomes  a  State 1":'> 

when  becomes  a  member  of  "  the  family  of  nations  "  .  173 
sovereignty  of.     ...       7.  8,  54,  58,  12:!.  167,  171,  173,  270 

holds  sovereignty  in  trust  for  citizens 1 07 

jurisdiction  supreme  in  its  own  territory 191 

extends  to  vessels  at  sea 170 

independence  of,  defined 171 

the  principal  source  of  human  law 7 

owes  duties  and  possesses  rights 167 

bound  by  its  own  laws 167 

legislative  power  the  supreme  power  in 166 

fixes  location  of  legislative  power 166 

prescribes  duties 133 

controls  all  things 118 

corporations 80,  90 

quasi  public  corporations 105 

public  corporations Ill 

duty  to  citizens 58,  59 

rights  against  citizens 60 

not  liable  for  acts  of  public  officers 51 

parens  patriae  of  infants  and  incapables 26 

as  a  corporation 112 

bound  to  reason  and  justice  toward  other  States    .     .     .     171 

may  enforce  laws  of  other  States 191 

laws  recognized  by  comity  in  other  States  170,  191,  194-203 
may  forbid  hostile  acts  towards  other  States  ....  108 
intercourse  with  other  States  governed  by  international 

law 171 

States,  rise  and  fall  of !l 

States  ok  American  Union,  origin  of 246,247 

Constitutions  of.    (See  Constitu- 
tion,)    .     .  240,  247.  248,  251,  --'.v.' 
Constitutions  of  are  limitations 

of  power 240,247 

reserved  powers  of 248 

similarities  between     ....     190 
govern   matters   not  of  national 

character 1S1 

two  systems  of  law  in  each      169,  179 


398  INDEX. 

States  of  American  Union,  Federal  Law  their  International 

Law 199 

Unwritten  Law  of 225 

how  far  English  Law  in   .     .  186-190 

courts  of 362 

follow  Federal  inter- 
pretation of  Fed- 
eral law     ....     183 

Status,  defined 23 

normal  and  abnormal 21 

of  infants 25-31 

of  insane  persons 32-10 

of  married  women 41-43 

of  persons  under  coercion  or  duress    ......      44-45 

of  public  officers     .     • 46-53 

of  aliens 54-62 

of  Indians 63 

of  slaves        .........     64 

depends  on  the  law 65 

general  laws  made  for  persons  of  normal 24 

principal  classes  of  abnormal 24 

Statutes 208,  209,  253,  263-282 

nature  of 263 

validity  of      .     .     .     , 8,  264,  265,  274-278 

as    dependent    on    mode   of   enactment   .     265 
on    character    of    subject- 
matter    ....       274-278 
on  relation  of  legislature 

to  State 275 

on  inherent  limitations  of 

legislative  power  .     .     .     276 
on  State  and  Federal  Con- 
stitutions      277 

jurisdiction  of  courts  over  questions  of       .     278 

contents  and  parts  of 266 

title,  preamble,  enacting  clause, 
provisos,  exceptions      .     .     .     266 

date  when  take  effect         .     .     . 267 

declaratory  and  remedial        ..........     268 

enlarging  and  restraining 268 

affirmative  and  negative „     .     .     .     .     268 

public  and  private    .....  <.....     269 


INDEX.  399 

Statutes,  general  and  local 270 

perpetual  and  temporary .     .     - 271 

mandatory  and  directory 272 

prospective  and  retrospective 273 

of  Limitation,  validity  of 208 

suspension  and  expiration  of     .     .     < .     .     .     ■     .     .     279 

repeal  of  and  its  effect 280,  281 

of  penal  statutes,  effect  of   ....    208,280,281 

constitutionality  of 253.  i'77 

Stock,  Corporations 95-99 

Shares  of 96,  98 

Stockholders,  lights  and  liabilities  of 96,  97,  99 

STREETS,  liability  of  public  corporation  for 109 

Strict  Construction  of  Laws.    (See  Law,  Interpretation  of)    3<>l 

Subscription  for  Stock 95,  97 

Substantive  Law 1G3,  164 

Suits,  multiplicity  of,  prevented  in  equity 326 

Sunday,  adiesnon 383 

Supreme  Court  of  the  United  States 353 

Surnames 21 

Surrogate's  Courts.     (See  Courts  of  Probate)       .     .     .     332-339 

Taxation,  on  behalf  of  quasi  public  corporations 102 

by  public  corporations     . 106 

by  the  State 60 

Technical  Words  in  Statutes,  how  construed       .     ."   .     .  295 

Temporary  Statutes       -'71 

Terms  of  Conns 310 

Territory  of  United  States,  law  governing 180 

Things,  defined 113 

human  beings  may  be 113 

corporeal  and  incorporeal 111.  115 

movable  and  immovable 116 

real  and  personal       117 

authority  of  State  over        118 

Title  <>e  Si  \  m  n. 266 

interpretative  value  of 297 

Title  of  Purchaser,  al  admiralty  sale 345 

Toils,  right  to  take 104 

Torts,  nature  of 143,  1 1"1 

Law  of - 398 

liability  of  infants  for .     . 


400  INDEX. 

Torts,  liability  of  insane  persons  for 37 

of  corporations  for 90 

maritime ...... 342-344 

Treason,  when  excused  by  duress 45 

Treaties 254-260 

nature  of • 254 

preparation  and  adoption  of 255 

validity  of 253,  255 

contents  of 250 

effect  of 257 

when  take  effect 257 

do  not  disturb  vested  rights 257 

supremacy  of ■  .     .     258 

are  part  of  the  Written  Law      .' 259 

amendment  and  abrogation  of 260 

effect  of  war  on 260 

remedies  for  breach  of      .     .     -. 260 

Treaty-Powers,  fixed  by  international  law 174 

Treatises  on  the  Unwritten  Law 232,  233,  235 

Trial  of  Causes 315 

Trusts  and  Trustees,  equity  jurisdiction  over     .....     326 
probate  jurisdiction  over 338 

Ubi  Jus  Ibi  Rkmedium     . 148 

Ultra  Vires 76 

Unborn  Child,  rights  of 17 

Unincorporated  Associations 87 

United  States,  Constitution  of,     (See  Constitutions,  Federal) 

240,  249-253 

includes  what  territory 180 

governs  all  matters  of  national  character     .  169,  1S1 

concurrent  jurisdiction  with  States     .     .       181,182 

i  authority  superior  in  common  field    ....     182 

common  law  in 15 

unwritten  law  of 226 

Unwritten  Law,    (See  Law,  forms  of,  Unwritten)  215-235,  284-292 

Validating  Laws 205,  273,  277 

Validity  of  Human  Laws .  8,  264,  265,  274-278 

Vessels,  jurisdiction  over,  when  at  sea 170 

title  to,  tried  in  admiralty 344 


INDEX.  401 

Vested  Rights,  how  affected  by  changes  in  law     .     .    200,  273,  277 
Voluntary  Associations 87 

Waiver 181,  138 

of  tort,  and  suit  on  contract 143 

Waters,  under  admiralty  jurisdiction 12,  342 

Widow,  domicile  of 68 

Wife,  subjection  to  husband 42 

domicile  of 68 

Will,  capacity  to  make 36 

of  insane  person 36 

probate  of 332,  336 

Witness,'  when  insane  person  may  be 39 

Words  in  Statute,  interpretation  of 293-303 

Writ  of  Error  from  State  to  Federal  Courts    .     .     .     363 

Writs,  antiquity  and  influence  of 318 

Register  of     .     .  » 233 

Written  Law  (See  Law,  forms  of,  Written)     .     .     .     215,  236-282 

interpretation  of 293-303 

Wrongs 139-147, 156-160 

against  rights  and  duties 139 

against  positive  duties  admit  of  degrees 139 

against  negative  duties  admit  of  no  degrees    ....     139 
by  malfeasance,  misfeasance,  nonfeasance       .     ...     140 

by  negligence,  simple  or  gross 140 

public  or  private 141 

public,  how  treated  by  State 141 

private,  ingredients  of 142 

torts  or  breaches  of  contract     .     .     .     .        143-143 

relation  to  status ,  148 

extinguishment  of  by  pardon  or  condonation      .     .     .     147 

remedies  for.     (See  Remedies) 148  157 

legal  relation  to  rights  and  duties     ....    189,156,  157 

redress  of,  defines  rights 157-169 

occupy  greater  part  of  treatises  and  reports    ....     160 

Year,  is  calendar  year 

Year-Books 214 


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